Summum had contended, among other challenges, that Pleasant Grove City had violated the Free Speech clause by permitting the Ten Commandments monument to be placed by the Fraternal Order of the Eagles, but denying Summum permission to place their own monument. The Court took the case in order to resolve the Free Speech issue: Can the government select some expressions by groups but deny others?
However, they ignored the obvious Establishment Clause problem: when Pleasant Grove City selected the particular kind of religious speech of the Ten Commandments monument, weren't they impermissibly endorsing that message, and dismissing the view of Summum? If so, the Court's decision diminishes the right of religious minorities to access the public square and speak their own messages.
The Court had its reasons. Justice Alito framed the issue around "who" was speaking with the monument. Either Pleasant Grove had set up a public forum in the park, where private parties could express their own views through such displays, or Pleasant Grove City was itself "speaking" by accepting the monument.
If the city had created a public forum for private speakers, then Pleasant Grove's decision to accept the Eagle's statute -- and to deny the Summum statute -- would have run afoul of established Free Speech law. Pleasant Grove cannot discriminate among viewpoints of private citizens in allowing them to speak in a neutral forum. They could not, for instance, issue a permit for Bill O'Reilly to speak in the park, but deny Jon Stewart the opportunity to do the same, merely because they prefer O'Reilly's views.
However, Alito tells us that when the Eagles placed the monument, it was Pleasant Grove City who was "speaking" through the monument, and the Free Speech clause "does not regulate government speech." Even though the "message" was provided by a private organization, Pleasant Grove could have many legitimate governmental purposes for placing a monument including, as Justice Breyer put the matter, "to further a variety of recreational, historical, educational, aesthetic, and other civic interests."
Since a monument can bear many meanings, and even though the Eagles may have wanted to promote morality among children with the Ten Commandments, the government may have simply been intending to aesthetically balance the park's layout with a big hunk of granite, or espouse a view that their laws are based on the Hebraic covenant. Accepting the Ten Commandments monument did not mean that Pleasant Grove necessarily endorsed the particular reasons of the Eagles. The monument, once accepted by Pleasant Grove, became the city's expression alone.
And, Alito tells us, America's history shows that governments engage in "selective receptivity," choosing among a variety of options to craft the government's message. The danger is that if governments must be viewpoint-neutral in selecting park monuments, then cities will be overcome with an "influx of clutter," or worse, they would have to remove "longstanding and cherished monuments" if they want to be selective at all. Parks across the country will be cluttered with every type of whacko monument. Or, the public square will be denuded of any cherished cultural objects.
The horror of clutter notwithstanding, the particular kind of monument at issue in Pleasant Grove City is religious symbolism. How can the government select one group's religious expression and deny another's? If we allow the government, under the banner of "government speech," to pick and choose which religious viewpoints gain a privileged perch in town parks, doesn't this open a dangerous path of discrimination against minority religions?
Justice Alito even raised this specter: "This does not mean that there are no restraints on government speech...government speech must comport with the Establishment Clause."
Yet Pleasant Grove City, with the Court's blessing, endorsed one type of religious speech over another. The net result of this Free Speech clause case is that elected representatives -- and a majority of the citizens -- got to favor a majority's religious view through direct government endorsement, while denying other religions the privileged space in the town square.
Alito asserts that since "a government entity is ultimately accountable to the electorate and the political process for its advocacy," the government can be turned out in the next election if the public dislikes their selections. Of course, this is a naïve view of the political process -- a healthy dose of the Federalist papers might caution Alito against relying on the majority of the citizens to constrain a government that is acting improperly. This concern is heightened when the citizens themselves -- the supposed check on legislative impropriety -- are the very source behind the "preferred" religious message.
We will have to wait to see what this Court can cook up to answer these Establishment Clause concerns. Justice Scalia pointed to the Ten Commandments case Van Orden v. Perry (2005) as a quick guide. At issue was another of the Eagle's monuments, on the Texas State Capitol grounds, set among dozens of other monuments. As Justice Scalia points out, the Court held that the Texas "monument conveyed a permissible secular message, as evidenced by its location in a park that contained multiple monuments and historical markers" and, in the particular context of the Capitol grounds, was a "passive" and "historic" acknowledgment "of the role played by the Ten Commandments in our Nation's heritage."
In Pleasant Grove, though, the monument stood essentially alone. The quirky Summum practitioners saw that the government had provided a privileged place for this powerful religious symbol and they wanted to have theirs included on the public square. They read the Establishment Clause -- as even the Court has -- to require that the government could not endorse the messages of some religious groups while preferring others.
Pleasant Grove, ruled by followers of a majority tradition, chose to speak religiously, but not include Summum in the chorus of voices. The Court, in a unanimous voice, agreed that Pleasant Grove can speak freely about matters of religious import.
The danger of the government speaking religiously -- but selectively -- must now be confronted head on. And until that issue gets settled in a way that does not disenfranchise minority religions, we should all wait to exhale.
