On Wednesday, February 25th, the US Supreme Court issued a ruling on a Utah monument case that involved the city of Pleasant Grove and religious group which tried to donate a monument to their Seven Aphorisms to be placed near an existing one with the Christian 10 Commandments. Unlike most cases like this, it was considered on Free Speech grounds rather than on religious establishment grounds. The court ruled that a government can pick and choose what gifts to receive and in doing so seemed to open them up to establishment challenges in the future.
Justice Alito, writing for the majority said:
The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. A government entity has the right to “speak for itself.” “[I]t is entitled to say what it wishes,” and to select the views that it wants to express. See Rust v. Sullivan, 500 S. 173, 194 (1991); National Endowment for Arts v. Finley, 524 U. S. 569, 598 (1998) (SCALIA, J., concurring in judgment) (“It is the very business of government to favor and disfavor points of view”)…..
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. It certainly is not common for property owners to open up their property for the installation of permanent monuments that convey a message with which they do not wish to be associated. And because property owners typically do not permit the construction of such monuments on their land, persons who observe donated monuments routinely—and reasonably—interpret them as conveying some message on the property owner’s behalf. In this context, there is little chance that observers will fail to appreciate the identity of the speaker. This is true whether the monument is located on private property or on public property, such as national, state, or city park land.
The court said that free speech doesn’t apply to government speech and it could pick and choose what speech it agrees with just like Joe the Plumber would at his house.
That’s where they opened the door to an establishment challenge in the future.
If the government can choose the speech they agree with to display and that speech is a singular sectarian religious text, then the casual observer would see that the government is endorsing that speech – therefore endorsing that religion.
If Joe the Plumber puts up the 10 Commandments – the casual observer would make the assumption that Joe is endorsing those words. Why else would he put them on his lawn?
That has been our argument for years in these types of cases. The effort to put up religious texts or symbols on government property creates an endorsement of what those words say and mean and shows favoritism to the religion that they come from. They are not generic or open to interpretation.
At the oral argument, Chief Justice John G. Roberts, Jr., told a lawyer for the small Utah city defending its policy on a Ten Commandments monument in a city park: “You’re just picking your poison, aren’t you? I mean, the more you say that the monument is government speech, to get out of the Free Speech Clause, the more it seems to me you’re walking into a trip under the Establishment Clause.”
Justice David H. Souter, the only Justice who did not join the Alito opinion, said that, from here on, if a monument accepted by the government “has some religious character, the specter of violating the Establishment Clause will behoove it to take care to avoid to avoid the appearance of a flat-out establishment of religion, in the sense of the government adoption of the tenets expressed or symbolized.”
Americans United had filed a brief in the case without taking a side asking that it be considered as an establishment case.
In the effort to pull yet another excuse to limit religious monuments to Christian ones, it seems the Supremes tripped up.