Monumental Terror

Jacob Sullum | November 11, 2008

In a case the U.S. Supreme Court will hear tomorrow, followers of Summum, a 33-year-old sect that (per The New York Times) "contains elements of Egyptian faiths and Gnostic Christianity," are fighting for the right to erect a monument listing their Seven Aphorisms alongside a Fraternal Order of the Eagles monument displaying the Ten Commandments in a city park. Last year a panel of the U.S. Court of Appeals for the 10th Circuit ruled that Pleasant Grove City, Utah, violated Summum members' First Amendment right to freedom of speech by rejecting the monument they proposed to donate. The government "may not take sides in a theological debate," the church argues. Critics of the decision, including the Bush administration and various cities and states, say it would require governments that accept any donated displays on public property to approve virtually every other proposal, no matter how hideous, offensive, or idiotic. "Accepting a Statue of Liberty," the city says, should not "compel a government to accept a Statue of Tyranny." Tenth Circuit Judge Michael McConnell, who unsuccessfully urged the full court to rehear the case, has more in the same vein:

This means that Central Park in New York, which contains the privately donated Alice in Wonderland statue, must now allow other persons to erect Summum's "Seven Aphorisms," or whatever else they choose (short of offending a policy that narrowly serves a "compelling" governmental interest).  Every park in the country that has accepted a VFW memorial is now a public forum for the erection of permanent fixed monuments; they must either remove the war memorials or brace themselves for an influx of clutter. 

Significantly, the religious nature of the donated monuments is not relevant to the free speech question (though it would be to an Establishment Clause challenge). These cases happen to involve Ten Commandments monuments, but it could work the other way. A city that accepted the donation of a statue honoring a local hero could be forced, under the panel's rulings, to allow a local religious society to erect a Ten Commandments monument—or for that matter, a cross, a nativity scene, a statue of Zeus, or a Confederate flag.

The Summum church says governments that want to avoid such problems can decline to accept donated monuments (thereby creating a "public forum" where viewpoint discrimination is constitutionally suspect) or explicitly adopt the donors' message as their own (thereby transforming private speech into government speech). It does not mention park privatization as a third option. 

In the June issue of reason, Jesse Walker noted how a similar controversy in Crossville, Tennessee, led to just the sort of monument proliferation McConnell fears. 

Comments

Pablo|11.11.08 @ 3:32PM|#

Fuck 'em.

billy bob bo diddley|11.11.08 @ 3:32PM|#

Geez, what a mess.

Seems like the easiest solution would be to give the couple of dozen Summum followers a first class ticket back to Gnosticstan.



Or maybe a popular vote on each monument erected?

squarooticus|11.11.08 @ 3:38PM|#

Or maybe a popular vote on each monument erected?

What would be the point? The purpose of the first amendment is ostensibly to protect the rights of the minority from the majority; what you propose is just another way for the majority to violate the minority's rights. Why not just skip that step, and let the government---elected by the majority, after all---discriminate openly?

|11.11.08 @ 3:45PM|#

The Seven Aphorisms of Summum

PSYCHOKINESIS
CORRESPONDENCE
VIBRATION
OPPOSITION
RHYTHM
CAUSE AND EFFECT
GENDER

No worse than most religious hoo-ha.

billy bob bo diddley|11.11.08 @ 3:46PM|#

Do people have a right to a park? They have the right of access to public space, so I guess what we need is to privitize all space in the country? Let the Summums put up their statue on their own space, the Ba'al worhippers on theirs, and the VFW guys on theirs.

TB|11.11.08 @ 3:46PM|#

Let the Summum's put their monument up or don't put up anything at all.

What is so goddamn hard to understand about freedom of speech?

|11.11.08 @ 3:49PM|#

What is so goddamn hard to understand about freedom of speech?

Non-denominational theocracy doesn't like challenges to its market dominance. It's like forcing McDonald's to have a Wendy's billboard on the roof of every store.

|11.11.08 @ 3:53PM|#

This has always been the essence of my case against erecting The Ten Commandments on public property: if you allow one, you have to allow 'em all. The Catholic Commandments (none of that "no graven images" crap for me). The Koran (with all alternate spellings included, apostrophe or no). The Bagavad Gita (imagine "I Am Become Death" posted adjacent to your local VFW hall). Anton LaVey's Laws of Satanism ("Pleased to meet you, hope you guessed my name..."). Joseph Smith, Heaven's Gate, L. Ron Hubbard, the Flying Spaghetti Monster, Lou Reed (some people think he's god), that homeless nutcase down the street who worships daily over a pile of pigeon bones...you gotta let 'em all in. Hallelujah! Or should that be Allelujah? Hari Lama? Well, you get the point...

anarch|11.11.08 @ 3:54PM|#

"Accepting a Statue of Liberty," the city says, should not "compel a government to accept a Statue of Tyranny."

Well, that should take care of a lot of our problems right there.

Oh. Statue.

I thought it said Statute.

Damn.

kinnath|11.11.08 @ 3:54PM|#

This means that Central Park in New York, which contains the privately donated Alice in Wonderland statue, must now allow other persons to erect Summum's "Seven Aphorisms," or whatever else they choose (short of offending a policy that narrowly serves a "compelling" governmental interest). Every park in the country that has accepted a VFW memorial is now a public forum for the erection of permanent fixed monuments; they must either remove the war memorials or brace themselves for an influx of clutter.

Duh!

anarch|11.11.08 @ 3:57PM|#

Jim W., Obama's eliminated that problem. Unify us and all.

Mike Laursen|11.11.08 @ 4:00PM|#

Not that I advocate that they do this, but could Pleasant Grove City sell that the patch of their park where the VFW memorial stands to a private organization? I vaguely remember that the City of San Diego tried doing something similar with a cross that stood on some public hill there; don't remember how it turned out.

Campaign for Tyranny|11.11.08 @ 4:01PM|#

I would donate money to erect a Statue of Tyranny. But whose face should be on it?

|11.11.08 @ 4:01PM|#

it would require governments that accept any donated displays on public property to approve virtually every other proposal, no matter how hideous, offensive, or idiotic.

And the signal-to-noise ratio rapidly approaches zero.

Good.

|11.11.08 @ 4:02PM|#

"Accepting a Statue of Liberty," the city says, should not "compel a government to accept a Statue of Tyranny."

Yet most cities will have the Ten Commandment monument while rejecting all other non-Abrahamic religious expression. Funny how quickly the very reasonable "we can't accommodate everybody" quickly turns into "praise Jesus."

kinnath|11.11.08 @ 4:02PM|#

I would donate money to erect a Statue of Tyranny. But whose face should be on it?

Just a mirror, that's all you need.

|11.11.08 @ 4:05PM|#

Critics of the decision, including the Bush administration and various cities and states, say it would require governments that accept any donated displays on public property to approve virtually every other proposal, no matter how hideous, offensive, or idiotic. "Accepting a Statue of Liberty," the city says, should not "compel a government to accept a Statue of Tyranny."

This is just willfully stupid.

Maybe the willful stupidity was with the appeals court, for not deciding this as an Establishment Clause case (I don't know, I haven't read the case). If the appeals court issued a decision that the erection of any public monument means that any and every requested monument must also be erected, then they should all be fired.

As an Establishment Clause case (which this should be, since it started with the Ten Commandments), it wouldn't have a single thing to say about secular monuments like the Statue of Liberty.

|11.11.08 @ 4:06PM|#

I would donate money to erect a Statue of Tyranny. But whose face should be on it?

It would have to be redone every 4 - 8 years, after the Presidential election, no?

Mike Laursen|11.11.08 @ 4:06PM|#

I would donate money to erect a Statue of Tyranny. But whose face should be on it?

It should be, like, a mirror, man, because we all have the roots of tyranny in us, man.

(To be read in an overcome by a stoned insight while rapping in one's dorm room at 3 am tone of voice for full effect.)

Pedro|11.11.08 @ 4:07PM|#

"RHYTHM"

So they're Catholic?

Mike Laursen|11.11.08 @ 4:08PM|#

Oops. Sorry, about that, kinnath. I posted before I saw your comment.

Boris|11.11.08 @ 4:10PM|#

"I would donate money to erect a Statue of Tyranny. But whose face should be on it?"

Carrot Top's

|11.11.08 @ 4:11PM|#

Sounds like a city could ban donated monuments, and then arrange to "buy" the ones it wanted from a group for a nominal sum like $1.

Fluffy|11.11.08 @ 4:12PM|#

If the appeals court issued a decision that the erection of any public monument means that any and every requested monument must also be erected, then they should all be fired.

Dean, I believe the point in this case was that the monument in question wasn't "erected" by the government. They only "accepted a donation" of a monument.

The government could not erect a statue praising the 10 Commandments itself, because of the Establishment Clause. It tried to get around the Establishment Clause by "accepting a donation" from a private group. Now that a private group has been allowed to erect - sorry, "donate" - their religious message, these crunchy folks want to "donate" their message, too.

The appeal court's ability to issue a clear decision was handicapped by the bad faith of one of the parties.

The obvious way to resolve the case is to say that when a government body accepts a private donation of a monument, it is endorsing the viewpoint of that monument. There's no problem with the state doing that for a purely secular message like "Remember Our WWII Veterans" or something like that - because the state erects its own similar monuments all the time. It would, of course, mean that ALL religiously-themed monuments would be out.

|11.11.08 @ 4:12PM|#

If you practice psychokinesis and rhythm, can you tap somebody else's foot in time to the music?

|11.11.08 @ 4:15PM|#

a statue of Zeus

At first blush I though this read "statue of Zaius," which of course would be just fine.

Fluffy|11.11.08 @ 4:16PM|#

Critics of the decision, including the Bush administration and various cities and states, say it would require governments that accept any donated displays on public property to approve virtually every other proposal, no matter how hideous, offensive, or idiotic.

I would also like to note that this means that the defense is saying, "Sure, we accepted the 10 Commandments monument, 'cause that's 'normal', but we want to reject this other monument, because it's hideous, offensive and idiotic." How can anyone not immediately see that exercising this judgment when comparing two religious monuments is in and of itself a violation of the Establishment Clause?

kinnath|11.11.08 @ 4:25PM|#

Hey Mike, Great Minds and all that . . . .

|11.11.08 @ 4:27PM|#

I don't think it matters for Establishment Clause purposes whether the monument was paid for by public funds or donated, as long as it stands on public property.

In that case, other religious monuments should also be accepted, no questions asked.

However, the requirement for equal treatment of religions does not have anything to do with the Statue of Liberty or other secular monuments.

So, if the opponents of this decision are saying that an Establishment Clause decision applies to anything other than religious monuments, they are either monumentally (heh) stupid, or arguing in bad faith.

If its not an Establishment Clause decision, then the appeals court is too dumb to be judges.

|11.11.08 @ 4:54PM|#

It is pretty easy to call this one. Secular statues are not the issue, religious symbols are.

With secular statues, since there is no need to treat anyone equally, the public can reject or accept, based on purely aesthetic reasons.

|11.11.08 @ 5:01PM|#

Is there no shortage of churches to post the Ten Commandments in public view on their property? I'm reminded of a case in Penna. where the county govt fought long and hard (and successfully) to keep the 10Cs on the courthouse wall, but none of the four or five churches in a four block radius troubled themselves to post these "transcendant rules for living" on their lawns.

Citizen Nothing|11.11.08 @ 5:07PM|#

PSYCHOKINESIS
CORRESPONDENCE
VIBRATION
OPPOSITION
RHYTHM
CAUSE AND EFFECT
GENDER

So, are they for 'em or agin' 'em?

M|11.11.08 @ 5:09PM|#

Let's start a fund to place a GIANT statue of Jupiter Optimus Maximus outside every federal appellate court in the land. He's basically the ultimate terrible god and a pretty strong symbol of a state sponsored religion. Zeus is pretty much the same thing, but he lacks that extra imperial pep to really make the irony sting.

|11.11.08 @ 5:29PM|#

"Sure, we accepted the 10 Commandments monument, 'cause that's 'normal', but we want to reject this other monument, because it's hideous, offensive and idiotic." How can anyone not immediately see that exercising this judgment when comparing two religious monuments is in and of itself a violation of the Establishment Clause?"

Well said.

McConnell is a straight up theocon, screw him.

Mad Max|11.11.08 @ 5:50PM|#

Does the pleasure of insulting the Ten Commandments give folks such a thrill as to let them gloss over the fairly radical implications of the Tenth Circuit opinion?

Consider that the ruling applies to sculptures and statuary of all kinds, religious and non-religious, on government property. That includes the George Washington statues in Washington Circle (DC) and the the Capitol Building.

Say that the Loyalist Association wanted to put statues of Benedict Arnold in both these places. Under the Tenth Circuit ruling, the federal courts would have to hold a hearing at which the federal government would have to justify its exclusion of Arnold's statue from these public places. The courts, not the officials actually administering the property, would get to decide whether to tolerate the "viewpoint discrimination" of having a Washington statue without accompanying it with a statue of the traitor. The burden would be on those who wanted to exclude Arnold's statues. After all, who is to say that only a single point of view should be represented by statues in a public place? Who's to say that Arnold's disloyalty to America was any more wrong than Washington's "disloyalty" to George III?

And H&R commenters would have the chance to post innumerable snarky comments about the uneducated rubes who want their belief in George Washington affirmed in public statuary. Why not honor Washington on private property if you care so much about him, huh? Why do you want to impose your private beliefs on me, man?

|11.11.08 @ 5:50PM|#

As a true and gnostic christian, I'm more in favor of the Ethic of Reciprocity, or something more like "Love is the Law" reflecting Jesus's sentimentes of the indwelling spirit of the divine.

The old testament laws are the laws of Sammael. So serve up some pork chops and lets have fun.

|11.11.08 @ 6:00PM|#

Mad Max
Please give me a neutral principle that would uphold the governments in question erecting privately donated monuments of the type they have allowed but not the ones they have forbid. On what grounds can they forbid the ones they have? They don't like the viewpoint? Clutter?

First past the post?

Mad Max|11.11.08 @ 6:19PM|#

Here's the "neutral principle" - the government gets to decide what statues to put on property it owns.

Could you articulate a principle which would keep a "privately donated" Benedict Arnold statue out of the U.S. Capitol, or out of public places where there's already a Washington statue?

There is a vacant niche for Benedict Arnold's statue on the Saratoga National Historical Park, administered by the U.S. Park Service at the site of the American victory at the Battle of Saratoga (1777). There are statues of the other American generals. What is the "neutral principle" which justifies omitting a statue of Arnold? For that matter, what is the "neutral principle" which justifies leaving out statues of the British generals at Saratoga?

|11.11.08 @ 6:34PM|#

Mad Max
So the government putting large statues of Jesus on their property is OK? No establishment clause problem there? Or huge tablets with John 3:16 on them?

Or better yet since you are arguing for a wider viewpoint stance, can governments around the nation put up large momuments that say "Libertarianism Sucks Ass?"

|11.11.08 @ 6:36PM|#

How about a big tablet that says "The government of ____ county endorses Christianity, specifically Evangelical Lutheranism, as the one and true religion."

According to your principle that passes.

Fluffy|11.11.08 @ 7:12PM|#

Max,

Once again, the ruling applies to donated monuments.

The monuments in the Capitol were procured by the government.

If the state allows one group to donate a monument, they are in effect allowing that group to engage in permanent speech on that public property. And if one group is to be allowed to do this, all groups must be so allowed. And the state has no right to make any distinction on the basis of content or even aesthetics. It simply has no right to make those sorts of distinctions, any more than you could allow one protest and then ban another on public property.

If it's important to have monuments on our public grounds, then they should only be erected by the state itself. That way there is no issue of favoritism of one group over another, and the state's design choices would be suitably limited by the Establishment Clause. Because RC may disagree with me, but I still contend that the entire point of having a "private" donated monument was an attempt to evade the Establishment Clause; an attempt which has now blown up in the government's face.

Mad Max|11.11.08 @ 7:46PM|#

Here is the Tenth Circuit decision which started all the fuss. It's the precedent for the case now being litigated against Pleasant Grove. Please note that the judges do not limit themselves to the "Establishment clause" issue. If that were the only issue, then the remedy would be simple - order the religious monument in question to be torn down, like the federal courts ordered with Roy Moore's monument. Of course I have a problem with that, but it's irrelevant to the 10th Circuit's actual decision.

(Incidentally, do not assume that the decision requires religious neutrality. Quite the contrary. Far from excluding religious expression from public property, it gives a privileged status to wealthy religious groups which can afford to commission statues and monuments and place these statues and monuments in public parks, and then to litigate the issue with recalcitrant . The Summum outfit obviously has the money to do all these things. A local nondenominational church, or a private individual of the "spiritual but not religious" persuasion, does not have these resources, so in effect the 10th Circuit (in H&R terms) has "established" wealthy religions at the expense of non-wealthy ones.)

The 10th Circuit based its decision on the First Amendment's Free Speech Clause, which protects speech on religious topics and speech on non-religious topics. In other words, the principles of the decision apply to privately-donated George Washington statues as well as to privately-donated Ten Commandments monuments.

To be sure, you could argue that the government is in the clear so long as it pays for its own George Washington statue instead of accepting it as a donation from patriotic citizens. Similarly, the 10th Circuit decision does not apply to the giant Our Lady of the Rockies statue overlooking Butte, Montana (caution: may cause apoplexy in secularists). This statue was *not* solely financed through private donations, as their Web site explains:

"On December 17, 1985, a NCh-54 Sikorsky Sky Crane lifted the statue in four sections to the top of the Continental Divide. The team that deftly executed the delicate operation were from the Army National Guard's Army Aviation Support Facility, the 137th Aviation Co. from the Reno-Stead Airport in Nevada.

"Supported by the Montana National Guard, the U.S. Army Reserve from Butte, and teams of civilian workers, the final head section was placed atop the statue, while thousands watched and honked their car horns and rang church bells throughout the valley, at 4:07 pm Mountain Standard Time on December 20, 1985."

So you see, if a statue or monument was erected and constructed by the government, at taxpayer expense, it *doesn't* come within the rationale of the 10th Circuit's decision.

In contrast, if a government accepts a privately-donated Washington statue, financed solely through private contributions, then it will be hard put to defend itself in a lawsuit by the Loyalist Association, seeking to erect a Benedict Arnold statue.

". . . RC may disagree with me, but I still contend that the entire point of having a "private" donated monument was an attempt to evade the Establishment Clause; an attempt which has now blown up in the government's face."

Many of these privately-donated Ten Commandments monuments were donated *before* the federal courts had "discovered" that religious monuments violated the First Amendment. Therefore, there was nothing at that time to "evade."

jtuf|11.11.08 @ 8:12PM|#

This sounds a bit like a tragedy of the commons problem. If a town is worried about the park becoming too cluttered, it can designate a hand full of spots in the part for monutments and auction them off to the highest bidder.

|11.11.08 @ 8:37PM|#

Wow Mad Max, you accomplished not answering or addressing fluffy or my questions/concerns above at all...

Mad Max|11.11.08 @ 11:06PM|#

CED (or simply D),

Could you clarify for me the distinction between "you didn't answer me" and "I didn't like your answer"?

I already addressed your Lutheranism hypothetical by pointing out that the federal courts would address that problem under a different constitutional provision than is involved in the 10th Circuit monument cases. The Lutheran monument would have been ruled an establishment of religion and the court would order it removed.

The 10th Circuit didn't invoke the Establishment clause - it invoked "Free Speech." If there's one privately donated monument in a park, other privately donated monuments are presumptively entitled to access.

The 10th Circuit has gone beyond "Remove that Unconstitutional monument immediately" into "let a hundred monuments bloom!"

As to fluffy, I've already replied to his donated-monument argument by saying that if someone donated a George Washington statue to a public place, the Loyalist Association could clamor for the right to put up a Benedict Arnold statue.

I wonder if either of you could comment about whether a government could accept a George Washington statute and reject an Arnold statue, and if so under what "neutral principle."

Mike Laursen|11.12.08 @ 12:22AM|#

I wonder if either of you could comment about whether a government could accept a George Washington statute and reject an Arnold statue, and if so under what "neutral principle."

The Court of Appeals ruling on free speech is interesting. Perhaps a government shouldn't be allowed to put a George Washington statue in a public place without also being willing to put a donated Benedict Arnold statue. Have to think about it.

However, displaying the Ten Commadments in a public space is a violation of the Establishment Clause no matter what the Court of Appeals ruled.

Mad Max|11.12.08 @ 12:33AM|#

"However, displaying the Ten Commadments in a public space is a violation of the Establishment Clause no matter what the Court of Appeals ruled."

The 10th Circuit didn't deal with that issue in this particular case. In general, the federal courts allow religious monuments to be "grandfathered" - if they're several decades old, then the religious component is believed to have been eroded, as opposed to a newly-installed religious monument, where the religious motive is fresh and blatant (as with Roy Moore).

Of course, I suspect the federal courts have other reasons for "grandfathering" old monuments - these monuments were installed in good faith, before anyone, even the federal courts, thought this was "unconstitutional." To change course now and demand the uprooting of old monuments - including perhaps the pictures of Moses, Muhammad and the Ten Commandments in the U.S. Supreme Court building - would simply underline how recent the whole Establishment-Clause jurisprudence really is. And it would entail a great uprooting of local traditions.

So in a way, a group like Summum gives the federal courts an alternate route to taking religion out of the public square. By intalling monuments from all sorts of groups, the courts will be reducing the identification of public spaces with a specifically Christian sensibility. Put an FSM statue and a Buddhist pagoda in the park alongside the Ten Commandments, and it takes the sting out of the Christian message of the place.

Mike Laursen|11.12.08 @ 1:04AM|#

The 10th Circuit didn't deal with that issue in this particular case. In general, the federal courts allow religious monuments to be "grandfathered" - if they're several decades old, then the religious component is believed to have been eroded, as opposed to a newly-installed religious monument, where the religious motive is fresh and blatant (as with Roy Moore).

I don't have a problem with grandfathering historical religious monuments. I didn't have time to read the entire ruling, so I was just going by this line in the Conclusion: "For the foregoing reasons, we (1) AFFIRM the district court ruling in so far as that ruling granted summary judgment in favor of the City of Ogden as to Summum's Establishment Clause claim..."

|11.12.08 @ 1:29AM|#

Mad Max hit upon an interesting point -- grandfathering historical religious monuments. My hope is, it could be something we could appreciate as part of our past, once we (eventually) move past it. Simply let those carved stones be to us as the pyramids are to modern residents of Cairo: quaint reminders of a superstitious history.

Secular statuary donations on publicly-owned land? Well, if I'm paying tax dollars for the upkeep, I'd like a say in what's shown there. If you put it up without my say, I want my money back.
Maybe I'd prefer not to pay for that park, but then again, nobody asked me.

I have to say, though - that Summum group's got quartz balls (kooky as they are). More power to 'em, for at least challenging the Judeo-Christian paradigm.

|11.12.08 @ 7:48AM|#

"To be sure, you could argue that the government is in the clear so long as it pays for its own George Washington statue instead of accepting it as a donation from patriotic citizens."

You've answered your own question.

But if they accept donations then yes they have to take the Arnold statue too.

Mad Max|11.12.08 @ 8:26AM|#

"if they accept donations then yes they have to take the Arnold statue too."

Let me try a variation on the ol' *Reason* drinking game.

For a foundation which urges governments to save money by letting private enterprise perform many of its functions, the Reason Foundation (via this magazine) sure seems willing to sabotage such public/private partnerships where statues and monuments in public parks are concerned.

If the government wants control over the monuments and statues in its own public places, then apparently they will have to dip into taxpayers' pockets to have the job done by government workers. If they accept private donations, then they are bound to cede control over their public spaces to the donor community.

The 10th Circuit calls this a "limited public forum." Limited, indeed! It used to be said (before the Internet) that "freedom of the press belongs to those who own a press." Now, with the 10th Circuit approach (which Reason seems to back), then the freedom of monumental expression belongs to those who can privately commission statues and monuments.

And according to this approach, if that means a statue honoring *Benedict Arnold,* then so be it.

All this foolishness - just to justify a crusade against religion in the public square!

|11.12.08 @ 10:12AM|#

Because RC may disagree with me, but I still contend that the entire point of having a "private" donated monument was an attempt to evade the Establishment Clause; an attempt which has now blown up in the government's face.

I don't doubt that at all.

For the foregoing reasons, we (1) AFFIRM the district court ruling in so far as that ruling granted summary judgment in favor of the City of Ogden as to Summum's Establishment Clause claim

There you have it. Its an Establishment Clause case. It in no way applies to secular monuments like the Statue of Liberty. That means anyone saying that it does is either stupid or disingenuous.

|11.12.08 @ 10:21AM|#

The Summum have a pyramid shaped church just as Jesus, the capstone described.

Clearly, these people have some spiritual insights that the mongrel masses of abrahamic demiurge worshippers lack.

Mad Max|11.12.08 @ 10:29AM|#

RC Dean,

You only quoted *part* of the Conclusion of the opinion. Here it is in full:

"III. CONCLUSION

"The Free Speech Clause of the First Amendment compels the City of Ogden to treat with equal dignity speech from divergent religious perspectives. On these facts, the City cannot display the Ten Commandments Monument while declining to display the Seven Principles Monument.

"For the foregoing reasons, we (1) AFFIRM the district court ruling in so far as that ruling granted summary judgment in favor of the City of Ogden as to Summum's Establishment Clause claim and (2) REVERSE the district court ruling in so far as that ruling granted summary judgment in favor of the City of Ogden on Summum's Free Speech Clause claim. We REMAND for further proceedings consistent with this opinion."

Ogden (sayeth court) created a limited public forum for religious monuments, so it had to allow diverse religious perspectives. Likewise, if it accepted a Washington statue, the city would have created a limited public forum for historical expression, or discusson of historical figures, or in any event for Washington and Arnold.


If you go upthread to the article, you will see this confirmed:

"Significantly, the religious nature of the donated monuments is not relevant to the free speech question (though it would be to an Establishment Clause challenge). These cases happen to involve Ten Commandments monuments, but it could work the other way. A city that accepted the donation of a statue honoring a local hero could be forced, under the panel's rulings, to allow a local religious society to erect a Ten Commandments monument-or for that matter, a cross, a nativity scene, a statue of Zeus, or a Confederate flag."

Mad Max|11.12.08 @ 10:30AM|#

"summary judgment in favor of the City of Ogden" means that the city *won* - that is, that it hadn't violated the Establishment Clause. That's what the appeals court upheld. The appeals court agreed that there was no Establishment Clause violation.

From the opinion:

"At oral argument, Summum's counsel conceded that, absent en banc reconsideration of Anderson v. Salt Lake City Corp., 475 F.2d 29, 30-34 (10th Cir. 1973), this panel could not reverse the district court's grant of summary judgment, in favor of the City of Ogden, on Summum's Establishment Clause claim. Given Summum's concession, we decline to further consider this issue and thus affirm that portion of the district court's order pertaining to Summum's Establishment Clause claim.

"We do address Summum's arguments in regard to the Free Speech Clause; we conclude that Summum has demonstrated the City of Ogden's violation of Summum's rights under this clause of the First Amendment and, hence, we reverse the district court's grant of summary judgment on this issue."

Mad Max|11.12.08 @ 10:46AM|#

The Pleasant Grove decision (now on appeal to the Supreme Court) is even more extreme than the Ogden decision. The Ogden court left open the possibility that the government has some flexibility in excluding monuments, so long as they don't "discriminate" based on viewpoint. "Washington was a hero, Arnold was a traitor; therefore you can glorify Washington but not Arnold" would be an example of viewpoint discrimination. But this left open the possibility that the government could at least limit the statutes in the park to (say) historically-relevant figures (Washington and Arnold yes, Mickey Mouse no). This would allow parks to be treated as "limited public forums" where there is *some* discretion to prescribe standards for monuments/statues.

In the Pleasant Grove case, the court held that, as far as the right to place monuments/statutes in parks is concerned, parks are "traditional public forums." That allows even less discretion for the government. If there's a privately donated Washington statue (or a 10 Commandments monument), then the government must also accept a Mickey Mouse statue, or an abstract sculpture, regardless of some kind of thematic relevance. The exception would be if there's a compelling interest in excluding a statue, but that rarely happens.

So we see where this is going - their previous ruling wasn't crazy enough, so they have to get crazier. Only the Supreme Court can put a stop to it - assuming they want to.

Mad Max|11.12.08 @ 10:52AM|#

And did you notice the dissent in the Pleasant Grove case - to quote it again,

"A city that accepted the donation of a statue honoring a local hero could be forced, under the panel's rulings, to allow a local religious society to erect a Ten Commandments monument-or for that matter, a cross, a nativity scene, a statue of Zeus, or a Confederate flag."

This means that, under the 10th circuit's latest decree, a government could be *forced* to introduce religious monuments into public parks which had previously been *free* from such monuments.

Mad Max|11.12.08 @ 10:57AM|#

The quoted dissenter accepted the Ogden precedent, but didn't want to stretch it as far as his colleagues did in the Pleasant Grove case. The Supreme Court doesn't have to follow 10th Circuit precedents, so they can overrule the Ogden decision if they want to, using the Pleasant Grove case as the opportunity to do so.

|11.12.08 @ 12:38PM|#

Thanks, Max.

So I'm back to: the court(s) are idiots.

And I'm lazy, for not doing the spadework on the opinion.

Mad Max|11.12.08 @ 1:37PM|#

Under a literal reading of the First Amendment's "freedom of speech" clause, a statue would only have rights if if it could talk.

Mike Laursen|11.12.08 @ 2:09PM|#

Let me try a variation on the ol' *Reason* drinking game.

Are you promoting the opinions of commenters on this blog to be official positions of Reason?

Mike Laursen|11.12.08 @ 2:21PM|#

So we see where this is going - their previous ruling wasn't crazy enough, so they have to get crazier.

I'm not sure it's crazy to say that governments shouldn't be putting statues of George Washington up in public parks while excluding statues of Benedict Arnold. Government has no compelling interest in promoting certain historical figures as heroes, or in displaying public art that takes a side on any other ideologically-charged or controversial matters.

It wouldn't be such an awful world if the local lady's historical society had to buy their own little plot of land to put up a statue of Washington, or the VFW had to buy their own little plot of land to put up a Ten Commandments monument.