Salt Lake Tribune - Justices in Commandments Case Ask: Where Will It Stop?

 By Thomas Burr, The Salt Lake Tribune

WASHINGTON - If the Supreme Court requires the Utah town of Pleasant Grove to post a monument to a spiritual group's Seven Aphorisms next to the Ten Commandments, what's to stop someone from demanding their own obelisk next to the Washington Monument or the Jefferson Memorial?

That's one of the questions the nation's highest court posed Wednesday as justices heard arguments over whether the Salt Lake City-based Summum group could erect a monument of its own guiding principles next to the Judeo-Christian commandments already planted in Pleasant Grove's Pioneer Park.

The case - likely to be decided in the spring - has major implications for governments big and small across the nation in how they handle monuments, markers and statues in their own public squares. Pleasant Grove's actions with the Ten Commandments could lead to rules for other jurisdictions facing similar situations.

Justices on Wednesday morning were skeptical of the argument by Summum attorney Pamela Harris that a city cannot discriminate what free speech it allows with regard to groups placing monuments in public parks or spaces.

"How far do you push that?" questioned Chief Justice John Roberts. "I mean you have a Statue of Liberty, do we have to have a Statue of Despotism? Or do we have to put any president who wants to be on Mount Rushmore?"

Harris responded that a government can control what monuments it erects but that it must adopt them as its own speech.

A lawyer arguing for the city and another representing the federal government said the nation's parks would be littered with monuments from every group that wanted to produce one if a government had no control over their placement in public areas.

"The Vietnam Veterans Memorial did not open us up to a Viet Cong memorial," said Daryl Joseffer, deputy U.S. solicitor general. "When the Martin Luther King memorial is completed on the Mall, it will not have to be offset by a monument to the man who shot Dr. King."

But that gets tricky, chided Justice John Paul Stevens.

"Well, supposing the government in the Vietnam Memorial decided not to put up the names of any homosexual soldiers. Would that be permissible?" he asked Joseffer, who joined with Pleasant Grove in the case.

"Yes," Joseffer responded. "When the government is speaking it can choose who to memorialize and who not."

Jay Sekulow, chief counsel to the American Center for Law & Justice, which represented Pleasant Grove, argued to the court that a government owns and controls the monuments in its parks, and has a role similar to a museum curator.

"This court has a depiction of Moses holding the Ten Commandment in the frieze of the courtroom with the words written in Hebrew," Sekulow said, glancing up at the south wall of the courtroom. "That's not an endorsement of the religion or of the commandments. It's representative of the history."

Justice Ruth Bader Ginsburg shot back that the court's carvings include many images from history, whereas the Pleasant Grove memorial is a stand-alone monument.

"You don't see, I don't think, anywhere 'I am the lord thy God.' That's not shown," she said about the courtroom wall, referencing the first line of the commandments.

It was the first Ten Commandments case the high court has taken up since Roberts and Associate Justice Samuel Alito were confirmed to the court, and both jumped into the lively argument over the details.  Alito didn't buy the argument of equal access. "To apply it to something like the Washington Monument or the Jefferson Memorial is ridiculous," he said.

Pleasant Grove Mayor Mike Daniels sat through the arguments and said the justices posed good questions of both sides.

"They asked some very important questions," he said. "We feel very good about our arguments. We think we'll prevail in this case."