Analysis: Sound and fury, meaning…what?
on Feb 25, 2009 at 2:30 pm
Analysis
Justice John Paul Stevens provided this assessment of the Supreme Court’s new review of the constitutionality of placing religious monuments on government property: “…the effect of today’s decision will be limited.” In fact, in the 15 weeks between the Court’s hearing on Nov. 12 in Pleasant Grove City v. Summum (07-665) and the final decision Wednesday, one thing remained absolutely unchanged: the real dispute here was not about free speech, but about church-state relations. But that was not even argued.
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.”
When the decision emerged, the Court was unanimous, at least in votes cast: government policy on placement of permanent markets in a public park is, constitutionally speaking, a form of government speech so there is no Free Speech Clause issue when a Ten Commandments monument is accepted but a monument to a different religion is excluded. The First Amendment clause protecting free speech only limits government regulation of private speech, and does not curb what the government can say, the Court said in the main opinion written by Justice Samuel A. Alito, Jr.
There was some quibbling among the Justices on that score, but not one of them voted against the victory the Court handed to Pleasant Grove City, Utah. But that may well not be a complete victory, and it certainly did not put an end to a constitutional controversy. Three Justices suggested quite plainly that, if the city is perceived as embracing the Christian dogma that is behind the Ten Commandments, the First Amendment’s Establishment Clause may come into play.  But two Justices said there simply won’t be an Establishment Clause problem down the road. And that debate surely will go on.
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.”
Those musings, and similar ones in the joint opinion of Justices John Paul Stevens and Ruth Bader Ginsburg, obviously prompted Justices Antonin Scalia and Clarence Thomas to write their own opinion to dispute the point. Scalia, writing for those two, noted that “from the start, the case has been litigated in the shadow” of the Establishment Clause. But he went on to argue that “the city ought not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire…[T]here are very good reasons to be confident that the park displays do not violate any part of the First Amendment.”
Scalia recalled that, three years ago, the Court had upheld against an establishment challenge the placement of a Ten Commandments monument on the grounds of Texas’ state capitol.  “There is little basis to distinguish the monument in this case,” the Justice wrote. “The city can safely exhale.”
The Alito opinion did not join directly in that debate, but did include a passing phrase suggesting that there are some restraints on “government speech,” such as a need to “comport with the Establishment Clause.” (Since Justices Scalia and Thomas said they joined the Alito opinion “in full,” Alito’s reference to the Establishment Clause was not strong enough to deny the opinion their support.)
It does appear, though, that future cases over displays of religion in the public square are not likely to turn on free speech analyses. Wednesday’s decision seems clearly to have scuttled that as a litigating strategy against, at least, permanent monuments. So religious displays will still be judged by the Court by the sometimes meandering interpretation of what the Establishment Clause forbids, or permits.
To that inquiry, the Court will return at its next Term. On Monday of this week, the Justices granted review of Salazar (Interior Secretary) v. Buono (08-472), an Establishment Clause case about a Christian cross that stands on a granite outcropping in a government “preserve” in southeastern California. There is some chance, though, that that case will go off on an issue of “standing” — who can complain in court about such displays.
