Supreme Court Confronts Religious Monuments Dispute

( [email protected] ) Nov 13, 2008 12:08 PM EST

WASHINGTON – The Supreme Court warily confronted a case Wednesday that mixes limits on free speech with issues of church-state separation.

The justices engaged in lively arguments over a small religious group's efforts to place a monument in a public park that already is home to a Ten Commandments display.

The court seemed reluctant to accept the arguments put forth by the religious group known as the Summum that once a government accepts any donations for display in a public park, it must accept all.

"I mean, you have a Statue of Liberty; do we have to have a statue of despotism? Or do we have to put any president who wants to be on Mount Rushmore?" Chief Justice John Roberts asked, acknowledging his examples might go a bit far.

Yet the court also was uncomfortable with the position of Pleasant Grove City, Utah, which rejected the Summum's request to erect a monument similar to the Ten Commandments marker that has stood in the city's Pioneer Park since 1971.

Justice David Souter wondered how the city could accept the Ten Commandments display and then say, "'We will not on identical terms take the Summum monument because we don't agree with the message...' Why isn't that a First Amendment violation?"

The Salt Lake City-based Summum wants to erect its "Seven Aphorisms of Summum" monument in the park. The Summum, formed in 1975, say the Seven Aphorisms were given to Moses on Mount Sinai along with the Ten Commandments. Moses destroyed the tablet containing the aphorisms because he saw the people weren't ready for them, the Summum say.

The Summum argued, and a federal appeals court agreed, that Pleasant Grove can't allow some private donations in its public park and reject others.

Pleasant Grove officials are supported by federal, state and city governments, plus veterans organizations.

They worry that a ruling for the Summum would allow almost anyone to erect a monument in a public park, including people with hateful points of view, or lead to the removal of war memorials and other longstanding displays.

The Justice Department lawyer who took part in Wednesday's arguments in support of the city said governments act almost as museum curators when they decide to place some monuments in public parks and not others.

"Of course the government can select the content and viewpoint of monuments on the National Mall and in other public parks across the country," Deputy Solicitor General Daryl Joseffer said. "The Vietnam Veterans Memorial did not open us up to a Viet Cong memorial. When the Martin Luther King Memorial is completed on the Mall, it will not have to be offset by a monument to the man who shot Dr. King."

Even that position drew skeptical questioning from Justice John Paul Stevens, who asked whether the government could choose to omit from the black granite Vietnam memorial the names of gay soldiers.

Yes, Joseffer said, the government could leave off those names and not run afoul of the First Amendment. But doing so could present other constitutional problems, he said.

The Ten Commandments marker in Utah is under the control of the city, even though it was erected by the Fraternal Order of Eagles. The city "can modify it, destroy it, drop it to the bottom of the ocean or sell it on eBay," Joseffer said.

The case appears to raise questions of government favoring one religion over another, which is prohibited by the First Amendment's establishment clause. But the Denver-based 10th U.S. Circuit Court of Appeals resolved the dispute on free speech grounds.

Some religious and civic groups want the justices to order the appeals court to review the case by looking at the religious freedoms issue.

The court ruled in a pair of cases in 2005 that historical displays of the Ten Commandments — like the one outside the Texas capitol that also was donated by the Eagles — do not violate the establishment clause, while those that are overtly religious may not be put up or maintained by governments.

Some justices wondered Wednesday whether the issue of government endorsement of religion was lurking behind the case.

Pamela Harris, arguing for the Summum, said the city could be open to such a challenge.

Jay Sekulow, representing the city, said the Ten Commandments display in Utah was much like the court-sanctioned monument in Texas.

A decision is expected before the summer.

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