What? You don't want *this* guy's monument in your park?
by Jason Fischer
The United States Supreme Court this week announced that a city’s government has a right to decide which donated monuments to display on municipal property (source). Justice Alito, writing for a unanimous Court, said that placement of a permanent marker on public grounds represents a type of government speech. As such, the government gets to pick the message.
The dispute began when a member of the Summum religion (which adopts Egyptian customs, such as mummification, with elements of Gnostic Christianity that teach spiritual knowledge is experiential) proposed that a monument to their “Seven Aphorisms” should be placed alongside an existing “Ten Commandments” monument. The city declined to accept the “donation,” and the “donor” sued, asserting a violation of their free speech rights. The Tenth Circuit agreed, and the dispute made it all the way to the High Court.
The Supreme Court rejected the lower court’s reasoning, which asserted that placing a monument in a public park was analogous to making a speech in an open forum. Alito states that the display of a permanent monument is not the same as a transitory expressive act, such as giving a speech or staging a protest.
He went on to explain what might happen if municipalities were forced to put up every proposed statue, in the name of “equal” treatment:
“Every jurisdiction that has accepted a donated war memorial may be asked to provide equal treatment for a donated monument questioning the cause for which the veterans fought. New York City, having accepted a donated statue of one heroic dog (Balto, the sled dog who brought medicine to Nome, Alaska, during a diphtheria epidemic) may be pressed to accept monuments for other dogs who are claimed to be equally worthy of commemoration.”
You can find the full text of the opinion here.
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This case confused me. Isn’t there an Establishment Clause issue front and center when the govt. decides to erect a monument. Didn’t it erect a monument from one group and reject one from another? I blasted through the opinion (didn’t read closely) and was surprised there wasn’t much discussion of the fact that the govt. should be constrained in discriminating b/w faiths.
(Maybe I misread it totally?)
Another question is what effect will this have on “nativity battles” that usually take place around the holidays? I thought the notion of equality was what underlied those battles?
The reason why the court didn’t address the Establishment Clause issues in this case was because the question presented was based solely on Free Speech grounds. Right or wrong, the Ten Commandments monument was already on the municipal property. The question presented was whether the government gets to choose which permanent monuments will be displayed going forward.
Nativity scenes, being seasonal, rather than permanent, wouldn’t fall into the category of monuments that this case applies to.
The whole discussion seemed off-kilter, given the burning question in my mind of whether the original monument was appropriately placed/erected. I guess court decisions can be like that sometimes, they just address the issue that has been “presented”.
As far as the establishment clause issue goes, Venkat, Scalia makes a persuasive argument that this monument is basically the same as the one at issue in Van Orden v. Perry, which was found constitutional. (I don’t really agree with the outcome of Van Orden, but I find it tough to disagree with Scalia’s concurrence on that point.)
Venkat said “erected”
Heh-heh. Heh.
yea…that’s funny :)
And while I find the original erection of the monument to be troublesome under McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) (which it resembles a hell of a lot more than Van Orden v. Perry), I think that the decision seems right. If a municipality wants to accept a monument with one point of view, that doesn’t mean that it has to turn the state house lawn into a free-for-all.
Lets take the fact that it was a religious display out of the equation. On Boston Common, there is a statue of four partisans. I always loved it and its tribute to those fighting against an occupying power. But, I don’t think that it means that there has to be a monument to the Vichy government, should ex-Vichy’s ask the Commonwealth to place one there.
[...] have First Amendment rights. Apparently, though, government entities do. WTF? According to The Legal Satyricon, the U.S. Supreme Court has unanimously held “that a city’s government has a right to [...]
I too was a little puzzled at first about the lack of any Establishment Clause discussion, but then I realized what jfischer so aptly pointed out. But it did seem that the court knew what it had to do so that every person with some “religious” monument that wanted equal treatment couldn’t compel the municipality to display theirs as well; they were probably very happy to sidestep that issue.
Even so, Alito seemed to have casually touched on it in pages 11-15 of the opinion, in which he goes on about how monuments may be interpreted differently and how the municipality isn’t necessarily trying to express the view that passers-by would ascribe to it. That both puzzled me and troubled me.
If that’s the case, then who is to say that a municipality couldn’t erect a gigantic cross with a sign that says “JESUS LOVES YOU” and claim that the message it conveys is that the historical, 2000 year-old man really loved everyone and probably holds great affinity for you? It seems to be a very dangerous path to start down, because you can nearly always claim that a religious monument is expressing something non-religious or historical, and what other people think is their own damn problem. It seemed a bit intellectually dishonest to me, not that that’s totally surprising…