If a case does not fit within a constitutional pigeonhole, is there no other way to define it so that a legal dispute can be decided?  That was the lingering question Wednesday as the Supreme Court tried to hack its way through a thicket of constitutional labels, with the legal fate of monuments donated by private groups and placed in government-owned parks hanging in the balance.  The case of Pleasant Grove City v. Summum (07-665) seems to have much to do with “public forum,” “limited public forum,” “government speech,” “private speech,” and “viewpoint discrimination,” among other categories. But the Court’s members seemed unpersuaded that any of them is just right for this case.  The Justices weren’t even sure which part of the First Amendment is really at issue — free speech, or church-state separation.

Justice Anthony M. Kennedy spoke disparagingly, saying “this case is an example of the tyranny of labels.”  He also wondered somewhat forlornly: “Does the law always require us to adopt an all-or-nothing position?….Do we have to decide this case that it’s all or nothing?”  Justice Stephen G. Breyer, on the same theme, asked: “Are we bound in these cases to apply what I think of as an artificial kind of conceptual framework or are we free to ask what seems to me to be at the heart of the matter?”

Justice David H. Souter suggested that “the tough issue here” is that “there is in fact a mixture, that it is government [speech] and private [speech]…We haven’t had this kind of a challenge before.”

Part — perhaps most — of the Court’s difficulty in pursuing a flexible basis for deciding the case was that standing before the Court were three lawyers each of whom argued for a simple, mainly label-driven outcome.  One said mere acceptance of a monument, whatever its message, turns it into “government speech.” One said the choice of monuments is simply what “government as curator” does, as in selecting paintings for a museum. And one said that a public park is a “public forum,” so monuments can’t be accepted or rejected for display there on the basis of what they say.

Although the Court did not appear convinced that it could rely on such simplicity, Justice Antonin Scalia provided a reminder that some ground of decision had to be found.  “We need a clear rule here,” he said. “We can’t expect the courts or the cities for that matter to investigate in every case what the degree of the Government’s involvement [is].”  (It was plain that Justice Scalia, for himself at least, would be content with a decision that government may explicitly embrace a religious monument without fretting about either part of the First Amendment.)

The case centers, of course, on a Ten Commandments monument, donated by the fraternal group, the Eagles, and displayed in a city park in Pleasant Grove City, Utah, and an alternative religious monument, offered by the Summum sect but turned away by the city.  And yet the case has not been tried as an Establishment Clause case; rather it is a Free Speech Clause dispute.  But that distinction did not dissuade the Justices, from the earliest point in the argument, from pressing questions about whether the city’s embrace of the Eagles’ granite donation was a form of endorsement of its decidedly religious message.

Jay Alan Sekulow, the Washington, D.C., lawyer for the Utah city, had barely begun his argument when Chief Justice John G. Roberts, Jr., told him: “You’re really 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 trap under the Establishment Clause.”

Though Sekulow tried repeatedly to show that the Establishment Clause had never been a part of the case, the Justices maintained a continuing interest in whether that Clause would emerge, sooner or later, as a serious complication for governments that accept identifiably religious artifacts and endorse — implicitly if not explicitly — their message.  Sekulow took that interest seriously, but argued that, if the Establishment Clause were at issue, the city’s acceptance of the Eagles’ monument was no more an endorsement of religion than is the depiction of Moses holding the Ten Commandments around the ceiling of the Court’s own chamber.  “Our position,” he said, “is the Government hasn’t established anything by accepting the monument.”

Most of Sekulow’s argument was focused on the “government speech” claim.  He said that, once the Eagles’ monument had passed legally into government ownership and control, it represented “Government speech.”  And, in that category, the city government was free to select among the messages it wanted to convey to its citizens, he said.  Jusotice Kennedy, however, was skeptical, telling Sekulow that “the ownership argument is not an answer” to concerns about discriminating between messages on monuments offered for display.

Deputy U.S. Solicitor General Daryl Joseffer took an equally simple approach, contending that the government is free to make whatever choices it wishes — at least as a First Amendment matter — when it is selecting monuments for display on public property.  “We can have a Washington Monument and a Jefferson Monument without an Adams one,” he said.

He pushed his argument quite far, tellling Justice John Paul Stevens that the Court could refuse to put up the names of homosexual soldiers on the Vietnam Memorial, which stands on government park property in Washington.  He suggested, when pressed, that there might be some “independent checks on the Government’s speech” under other constitutional clauses — a proposition that Justice Kennedy dismissed, saying “I don’t think you can avoid the hard part by saying, oh, other amendments of the Constitution might apply.  The heart of the question is whether the Government may discriminate based on content, and that’s a First Amendment question.”

The federal government counsel indicated he saw no problem in Souter’s formulation of the problem as being one that involved mixed private and government speech.  He noted that the government allows visitors to the Vietnam Memorial to put private objects next to the wall, conveying some message, but at the end of the day, the Park Service is free to carry them away to a government warehouse.

Pamela Harris, a Washington, D.C., lawyer representing the Summum religious movement, was devoted to her forum analysis: “a public park is a public forum.” Justice after Justice suggested qualifications in that formulation — including Kennedy, who responded to her by berating “the tyranny of labels” — but Harris was not dissuaded.  She suggested that any government that wanted to convert a monument into a form of government speech could either take some formal action to accept its message as its own, and any government that wanted to limit monuments in its parks could adopt a policy to do so — as long as it was neutral about the content of what is allowed and what is banned.

Harris made clear that she is aware that, if Pleasant Grove did embrace the message of the Eagles’ Ten Commandments monument, it would then face an Establishment Clause challenge.  She also indicated why the city would not want to do that anyway: “the version of the Ten Commandments on the Eagles monument isn’t even the Mormon version of the Ten Commandments,” and “that might raise sensitivities in this town.”

Justice Scalia told her bluntly that, when the time came to return to the Court to argue that Pleasant Grove had violated the Establishment Clause by embracing the Ten Commandments message, “you will say something like this: Anybody who comes into this park and seeing this monument owned by the Government, on Government land, will think that the Government is endorsing this message. That’s what you will say now.” She did not endorse that version, saying that an Establishment Clause problem might arise whether the government was acting on its own or interacting with private speech.

Justices Ginsburg and Souter suggested to Harris that she was oversimplifying public forum analysis, but that did not lessen her emphasis on that argument.  The exchanges with the Court grew more diffuse as the Justices tried to probe just what steps a government would have to take in order to give itself the option of accepting a monument with one message but rejecting one with a different message.

Posted in Pleasant Grove City, UT v. Summum, Everything Else