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Religious Monument Raises First Amendment Dilemma

by Paul Rasor, Center Director

The freedoms protected by the First Amendment overlap. The Religion Clauses prohibit government establishment of religion while protecting the right of private persons and groups to practice their religious faiths freely. The First Amendment also protects the freedoms of speech and the press, the right of peaceable assembly, and the right to petition for "a redress of grievances." The overlapping nature of these freedoms means, for example, that religious expression is both a form of protected free exercise and a form of protected speech, just as religious worship might be thought of as a protected form of assembly.

In recent years, the courts have increasingly treated cases involving religious expression as speech cases. Yet religious speech can raise thorny constitutional issues not raised by other forms of speech. When private individuals or groups seek to use public spaces to present religious messages, the Free Speech and Free Exercise clauses bump up against the Establishment Clause in complex and ambiguous ways.  The U.S. Supreme Court has an opportunity to clarify the relationship among these clauses in an important First Amendment case that will be decided this year.

The case, Pleasant Grove City v. Summum, began when the city refused a request by a small religious group called Summum to install a monument displaying its core teachings in a public park. The park already contained several other monuments and memorials donated by civic groups, including a Ten Commandments display accepted by the city 32 years earlier. The proper way to approach the First Amendment issues in this case is far from clear, and each of the alternatives seems to violate one core First Amendment value while upholding another.

There is a well-established rule that the government may not engage in viewpoint discrimination; that is, it may not regulate the use of public forums to allow some forms of private speech and exclude others based on their content. It was on this basis that the federal Tenth Circuit Court of Appeals ruled that the city was required to display Summum's monument. This approach raises an obvious practical problem – must a city accept every monument offered by anyone? As Chief Justice Roberts asked during oral argument, just because we have a Statue of Liberty, "do we have to have a statue of despotism?" or, as Justice Scalia suggested, "a monument to chocolate cookies?"

Yet the alternative approaches raise other constitutional difficulties. One possibility would be for the city to accept the monument as gift and then display it as its own. This solves the viewpoint discrimination problem because the Supreme Court has ruled that when the government itself is speaking, it may choose its own message without worrying about the First Amendment. This approach would allow the city to accept some monuments and reject others, and better control the use of limited public space.

The problem is that displaying a religious monument as a form of government speech would seem to be a clear violation of the Establishment Clause. And this strategy would presumably require the city to adopt the older Ten Commandments monument in the same way, compounding the Establishment violation. Moreover, the Establishment Clause requires the government to be neutral in matters of religion by not favoring one faith over another, so it couldn't adopt one while rejecting the other. In other words, short of accepting every permanent display offered by anyone (or tearing down the Ten Commandments monument), the city risks violating the Establishment Clause if it accepts Summum's offering and violating the Freedom of Speech Clause if it rejects it.

It seems unlikely that the Supreme Court will require the city to accept the Summum monument. But the grounds on which it might permit the city to refuse are far from clear. This case could help clarify some very thorny First Amendment issues, or it could further cloud the already muddy First Amendment waters.

As the stories featured in the Religious Freedom in the News section on page 3 illustrate, some government officials are using the public forum concept in an effort to avoid the issues created by holiday displays. Whether this strategy will be successful in the long run remains to be seen, and will likely depend in part on the outcome of the Pleasant Grove case. One thing remains clear, however: a host of difficult legal and practical problems inevitably arise when religious displays are permitted on government property.

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