High Court Rules Against Religious Marker

The Supreme Court has ruled against a group that wants to erect a monument to its principles of living. The group argued it has the right to display the Seven Aphorisms in a public park in Utah because the city displays a Ten Commandments monument there.

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The U.S. Supreme Court gave local governments greater leeway today to erect religious monuments donated by private groups. The court ruled unanimously that a Utah religious sect has no free speech right to erect its own monument in a public park, a park that already has a privately funded monument to the Ten Commandments.

NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: A Ten Commandments monument sat in a public park in Pleasant Grove City, Utah for almost 40 years until a little known religious group called Summum sought to erect its own version of the Ten Commandments - a list of tenants called the Seven Aphorisms. When the city said no, Summum sued and won a ruling that government may not choose some private speech over others for a public park. But today the U.S. Supreme Court overturned that lower court decision.

Writing for a unanimous court, Justice Samuel Alito said that monuments are not like other forms of expression in the public square. Speakers eventually wind down, protestors and paraders eventually go home, even leafletters do. But monuments are permanent structures on limited land space, and thus, he said, when a government elects to accept a monument for a public park, the monument's message becomes the government's, and the government has its own right of free speech.

Government would simply be unable to function without expressing opinions or if were subject to equal time demands from citizens who disagree. That, however, does not mean that there are no constitutional restraints on government speech, said Alito. For example, the First Amendment to the Constitution forbids government establishment of religion.

Four years ago, a closely divided court said basically that the government cannot display the Ten Commandments as a religious message, but it can, when the amendments are displayed, to show the impact of religion on society. The court did not today resolve whether this particular display of the Ten Commandments would pass constitutional muster, though, there were suggestions from two justices that it would. Notre Dame law professor Richard Garnett.

RICHARD GARNETT: The signal we get with respect to religious symbols is that they can be permissible, but the rule is still that the government has to be sure it doesn't endorse religion when it permits such a display on public property or when it puts up such a display for itself.

TOTENBERG: In recent decades these questions have often been resolved in the Supreme Court by five to four votes, with Justice Sandra Day O'Connor providing a break on those justices who saw no problem with religious displays on public property. But she now has retired and been replaced by Justice Alito, a justice more willing to accommodate religious displays.

In his opinion today, he rejected the notion that monuments convey only one message. Even a monument featuring the written word, he said, may be interpreted differently by different observers. And he pointed to New York City Central Park monument to John Lennon, which features a Greco-Roman mosaic of the word "Imagine," the song Lennon wrote and (unintelligible) sings.

Mr. John Lennon (Musician): (Singing) Imagine there's no heaven. It's easy if you try. No hell below us. Above us only sky.

(SOUNDBITE OF THE SONG, "IMAGINE")

TOTENBERG: Some observers said Alito may imagine Lennon's musical contributions if he'd not been killed. Other may think of the lyrics of the song suggesting the benefit of a world without religion, countries, possessions, greed or hunger. University of Michigan law professor Douglas Laycock says that Alito's broad language allowing almost any interpretation for a monument is problematic.

P: That is just a wide open door for governments to put up religious messages and lie about why they did it and say that it's ambiguous and it can mean other things. And we're not endorsing, really, this message, we're just putting up through this message. And that's been a problem in these cases for a long time.

TOTENBERG: Indeed, next term the Supreme Court is scheduled to hear a case testing whether an eight-foot cross put up in a national park by the Veterans of Foreign Wars, whether the cross violates the Constitution's ban on establishment of religion. And the government is contending that it's not a religious monument at all, but a monument honoring war dead.

Nina Totenberg, NPR News, Washington.

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