WASHINGTON In what some are calling a landmark decision that could impact religious monuments across the country, the U.S. Supreme Court Feb. 25 unanimously ruled that a Utah city can keep a Ten Commandments monument in a public park without being required to erect a monument for an unorthodox religious sect.
The 9-0 decision authored by Justice Samuel Alito said the city's Ten Commandments monument is a form of government speech and therefore not restricted by the Constitution's Free Speech Clause, which protects private speech. The case involved a three-decades-old religious sect known as Summum, which sought to have a monument about its beliefs erected in a park in Pleasant Grove City. Eight justices agreed with the judgment and ruling; a ninth justice, David Souter, agreed with the judgment but expressed concern about the reasoning.
Unlike a pair of high-profile Ten Commandments cases in 2005, the ruling did not involve the First Amendment's Establishment Clause prohibiting government establishment of religion. The Feb. 25 decision overturned a ruling by a Tenth Circuit Court of Appeals panel that had ordered the city to allow a monument by the religious sect.
The case was being watched closely by war veterans organizations, who expressed concern that the nation's war memorials some of which contain biblical references and imagery could be in danger if the city lost the case. The Utah cities of Salt Lake City and Ogden removed Ten Commandments displays in the wake of the Summum lawsuit.
The monument was donated to the city in 1971 by the Fraternal Order of Eagles. The city maintained that it limited monuments in the park to those that directly related to the city's history or were donated by groups with historical ties to the community.
"There may be situations in which it is difficult to tell whether a government entity is speaking on its own behalf or is providing a forum for private speech, but this case does not present such a situation," Alito wrote. "Permanent monuments displayed on public property typically represent government speech."
Alito continued: "Just as government-commissioned and government-financed monuments speak for the government, so do privately financed and donated monuments that the government accepts and displays to the public on government land."
The Free Speech Clause "restricts government regulation on private speech" but "does not regulate government speech," Alito wrote. But that "does not mean that there are no restraints on government speech."
"For example, government speech must comport with the Establishment Clause," he wrote.
The court, though, did not delve into the Establishment Clause in the case.
A government, Alito said, is not required to maintain viewpoint neutrality when erecting or accepting monuments.
"If government entities must maintain viewpoint neutrality in their selection of donated monuments, they must either 'brace themselves for an influx of clutter' or face the pressure to remove longstanding and cherished monuments," Alito wrote. "... Every jurisdiction that has accepted a donated war memorial may be asked to provide equal treatment for a donated monument questioning the cause for which the veterans fought."
Alito gave the example of New York City, which accepted a donated statue of the dog Balto, who led a dog sled in taking medicine to Nome, Alaska, during a diphtheria epidemic. If the city were forced to remain viewpoint neutral, Alito asked, must it also be required to accept statues of other dogs?
"The obvious truth of the matter is that if public parks were considered to be traditional public forums for the purpose of erecting privately donated monuments, most parks would have little choice but to refuse all such donations," Alito wrote. "And where the application of forum analysis would lead almost inexorably to closing of the forum, it is obvious that forum analysis is out of place."
Jay Sekulow, chief counsel for the American Center for Law and Justice, applauded the ruling. Sekulow represented Pleasant Grove City during oral arguments and urged the justices to stay within the confines of the Free Speech Clause.
"This decision represents a resounding victory for government speech," Sekulow said in a statement. "The decision gives government the right to speak for itself and the ability to communicate on behalf of its citizens. It's a landmark decision that clears the way for government to express its views and its history through the selection of monuments including religious monuments and displays."
Sekulow added, "This decision also puts a bookend on the litigation surrounding the display of the Ten Commandments that's been taking place for years across the country. The critical question before the Court: Can a city decide which permanent, unattended monuments, if any, to install on city property? Without dissent, the Court said 'Yes.' We're delighted that the Court upheld the important distinction between government speech and private speech."
Justice Antonin Scalia wrote a concurring opinion in which Justice Clarence Thomas joined saying that the monument would also have been upheld under Establishment Clause scrutiny. In a 2005 Establishment Clause case, Scalia noted, the court allowed a Ten Commandments display to remain on the Texas capitol grounds. That monument, too, was donated by the Fraternal Order of Eagles.
Pleasant Grove City "can safely exhale," Scalia wrote. "Its residents and visitors can now return to enjoying Pioneer Park's wishing well, its historic granary and, yes, even its Ten Commandments monument without fear that they are complicit in an establishment of religion."