ACLJ: Supreme Court Must Take Utah Cases to Correct Flawed Decision Putting Displays of Nation's Heritage at Risk

(Washington, DC) The American Center for Law and Justice (ACLJ), focusing on constitutional law, today urged the Supreme Court of the United States to reject arguments presented by a group that is trying to force two Utah cities to display a monument in city parks two cases that could significantly alter First Amendment law resulting in the possible elimination of decades-old displays of our nations heritage.

The ACLJ, which represents the two Utah cities, once again urged the high court to take the cases and overturn troubling lower court decisions that could force local governments across the country either to dismantle a host of monuments, memorials, and other displays including long-standing patriotic and historical displays or else let all comers install privately owned monuments or displays, regardless of content.

The Supreme Court is faced with a dramatic opportunity:  preserve sound precedent involving the well-established distinction between government speech and private speech or permit a twisted interpretation of the Constitution to create havoc in cities and localities across America, said Jay Sekulow, Chief Counsel of the ACLJ, which represents the two Utah cities of Pleasant Grove and Duchesne.  Were hopeful the high court will take the cases and correct a troubling decision that would ultimately force local governments to remove long-standing and well established patriotic, religious and historical displays.  The lower court decisions miss a key distinction between government speech and private speech. The government has to be neutral toward private speech, but it does not have to be neutral in its own speech.  The Tenth Circuit confused this rule when it said private parties have a First Amendment right to put up the monuments of their choosing in a city park, unless the city takes away all other donated monuments.  It is our hope the Supreme Court steps in to correct this flawed reasoning.

The ACLJ today filed reply briefs with the high court in two separate cases.  The ACLJ filed a Reply to Brief in Opposition regarding its Petitions for Writ of Certiorari in the cases of Pleasant Grove City v. Summum (No. 07-665) and Duchesne City v. Summum (No. 07-690).

In August 2007, the U.S. Court of Appeals for the Tenth Circuit split 6-6 over a request for the full appeals court to rehear two cases involving demands that the Utah cities of Pleasant Grove City and Duchesne City erect monuments containing the Seven Aphorisms of a group called Summum.   The federal appeals court had ruled in favor of Summum in both cases, saying the group could insist upon erecting its own Seven Aphorisms monument in the city parks because the cities already displayed monuments of the Ten Commandments which were donated decades ago.

In its reply briefs filed with the high court, the ACLJ contends the appeals court got it wrong.

The Constitution does not empower private parties to force permanent displays into a park, crowding out the available physical space and trumping the governments own vision for the parks decor or theme, the filing in the Pleasant Grove City case contends.  The principal analytical flaw in the decision below was the Tenth Circuits holding reflecting a line of aberrant Tenth Circuit cases that a donated monument somehow remains private speech, rather than government speech, despite the governments ownership and control of the monument.

The ACLJ also contends that the lower court decision badly distorts the Supreme Courts government speech and public forum doctrines.  And the ACLJ argues that the appeals court decision creates enormous practical problems, as now any federal, state, or local government body displaying a monument that once was donated (and there are many such instances) is a sitting target for litigation demanding the erection and display of a host of additional monuments in the name of equal access.

The ACLJ has argued that unless the lower court decisions are overturned, cities and states will be forced to face a burdensome and unwarranted choice remove long-standing monuments or permit any group to display any monument in public places. 

In the Duchesne case, even an attorney for Summum admitted to the federal district court that its position could lead to bizarre results.  Summums attorney told the court that if a city park is required to display monuments contributed by all comers, the city park may well end up looking like a cemetery with many, many monuments.

You can read the Pleasant Grove brief here.

You can read the Duchesne brief here.

With todays filings, the Supreme Court will now consider the two Utah cases at conference and determine whether it will take the cases or let the lower court decisions stand.   The Justices could make a decision on whether to accept the cases within the next few weeks.

Led by Chief Counsel Jay Sekulow, the American Center for Law and Justice focuses on constitutional law and is based in Washington, D.C.