Deseret Morning News, Salt Lake City, UT - Justices to Hear Pleasant Grove Tablets Case

April 1, 2008
By Catherine Smith, Deseret Morning News, Salt Lake City, UT

PLEASANT GROVE This small-but-growing Utah Valley city is getting a bit of national notoriety. The U.S. Supreme Court has agreed to hear a free-speech case in which a religious group wants to place a religious monument in a park.

Officials in Pleasant Grove asked the court to step into the lawsuit brought by the religious group Summum, saying that if the group prevails, governments would be inundated with demands to display donated monuments.

Attorneys for Pleasant Grove say they're excited to be able to address the First Amendment issue.

"We're delighted that the Supreme Court has agreed to take this case," Jay Sekulow, chief counsel for the American Center for Law and Justice, a constitutional law firm based in Washington, D.C., that is representing Pleasant Grove, said in a statement to the Deseret Morning News. "This is a critically important First Amendment case that focuses on the well-established distinction between government speech and private speech."

The dispute stems from Pleasant Grove's refusal to allow the display of a "Seven Aphorisms of Summum" monument in the same park that is the home to a Ten Commandments monument donated 47 years ago by the Fraternal Order of Eagles.

At issue is whether a donated monument displayed by a municipality remains the private speech of the original donor or is government speech; and whether placing donated monuments in a government-owned park creates a public forum or whether the government retains authority to select which monuments to display.

The 10th U.S. Circuit Court of Appeals in Denver ruled in favor of Summum, saying the monument remains the private speech of the donor and that the park is a public forum.

Sekulow said that the Supreme Court can change the interpretation of the amendment and the decision by the appeals court.

"We're hopeful the Supreme Court will ultimately conclude that the appeals court got it wrong," he said. "This is an important opportunity for the high court to correct a flawed interpretation of the First Amendment."

In asking the Supreme Court to intervene, lawyers for Pleasant Grove wrote: "Government bodies are now sitting targets for demands that they grant 'equal access' to whatever comparable monuments a given group wishes to have installed, be it Summum's Seven Aphorisms, an atheist group's Monument to Freethought or Rev. Fred Phelps's denunciations of homosexual persons."

In response, Summum said government bodies always have the option of banning display of all privately donated monuments.

Pleasant Grove has treated donated items as private speech for decades, said Summum, a Latin term meaning the sum total of all creation, which was founded in 1975 and is headquartered in Salt Lake City.

Summum's attorney, Brian Barnard of the Utah Legal Clinic, said the group is trying to pair its monument with one promoting the Ten Commandments.

"Summum says, 'Our Seven Aphorisms are comparable and complementary to the Ten Commandments, so please let us put ours up,"' Barnard said. "It's a matter of simple fairness."

The Seven Aphorisms refer to a Summum belief that when Moses received stone tablets on Mount Sinai inscribed with writings made by a divine being, he actually received two separate sets of tablets the Seven Aphorisms and the Ten Commandments.

Legal experts are hesitant to predict how the court might decide the case because some public-forum cases are a bit murky.

"The U.S. Supreme Court precedent is not clear enough to tell what way this case will turn out," said John Fee, a law professor at Brigham Young University.

Besides no set precedent for cases such as this, Fee said the case was controversial while it was in the 10th Circuit Court of Appeals. Several of the justices voted to have the case reheard, but the vote failed, and those justices filed dissenting opinions. Fee said the Supreme Court will take a fair look at the case and there is a chance it could be reversed, but it's hard to predict.

"We can't really predict," he said. "I doubt the justices themselves know. I think it's almost certain to produce a divided opinion in the U.S. Supreme Court."

Fee said that historically the Supreme Court has sought to have a sensible balance in public-forum cases.

"With these First Amendment cases where precedent is mushy, it really is a gut decision based on broader principles, not mechanical rules they've laid down," he said.

While this could be a landmark case, Fee said subtleties in the case may not apply to others, and whether the court will lay out clear rules in the written opinion will remain unknown until the opinion is written.

Pleasant Grove Mayor Michael W. Daniels said the city's objection is not with the content or placing of the monument but with the precedent it could set.

"It's about not letting just anyone walk in and say, 'Because you have this, we have a right to put this up,"' Daniels said. "Summum was pretty much demanding and by law, trying to sue us to allow their particular monument to come into our park."