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Unanimous Court Rejects Summum Case, Sidesteps Establishment Clause Question E-mail
This morning the Supreme Court issued its ruling in the case involving members of the Summum faith, who argued that a monument to their religion must be accepted in a public park by the government if a monument to other religions are included. The Justices - most of whom joined in the opinion written by Samuel Alito - rejected that bid, saying that local governments are not required to accept all monuments because they constitute government speech, hence the content may be subject to editorial control.
We conclude, however, that although a park is atraditional public forum for speeches and other transitory expressive acts, the display of a permanent monument in a public park is not a form of expression to which forum analysis applies. Instead, the placement of a permanent monument in a public park is best viewed as a form of government speech and is therefore not subject to scrutiny under the Free Speech Clause.
IN his concurrence, Justice Stevens notes that the effect of this decision will be limited, because
[R]ecognizing permanent displays on public property as government speech will not give the government free license to communicate offensive or partisan messages. For even if the Free Speech Clause neither restricts nor protects government speech, government speakers are bound by the Constitution's other proscriptions, including those supplied by the Establishment and Equal Protection Clauses.
Meanwhile, Justice Scalia takes pains to argue that the Establishment Clause is no threat here:
The city ought not fear that today's victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent's intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment.
Lastly, Justice Souter acknowledges that the Court has not yet addressed the key relationship many church-state groups, including the BJC, were urging: that between the government speech doctrine and the Establishment Clause. As such, the ramifications remain "simply unclear".
Even though...Establishment Clause issues have been neither raised nor briefed before us, there is no doubt that this case and its government speech claim has been litigated by the parties with one eye on the Establishment Clause. The interaction between the "government speech doctrine" and Establishment Clause principles has not, however, begun to be worked out.
The case shows that it may not be easy to work out.
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