Supreme Court Hears Religious Display Case

The Supreme Court hears a case Wednesday testing whether any religious group has the right to erect a monument in a public space — if there is already another one there, such as a Ten Commandments monument. Federal appeals courts across the country have ruled in different ways in a variety of cases.

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RENEE MONTAGNE, host:

This is Morning Edition from NPR News. I'm Renee Montagne.

ARI SHAPIRO, host:

And I'm Ari Shapiro. Steve Inskeep is on assignment. Today the Supreme Court returns to the question of religious monuments on public property. This time the issue is not whether the government can put up religious displays. The question today is whether the government can accept displays from some private organizations and reject others. NPR legal affairs correspondent Nina Totenberg reports.

NINA TOTENBERG: Three years ago, the issue was whether government displays of the Ten Commandments violate the Constitution's ban on establishing religion. A closely divided court split on the issue, basically saying that government cannot display the Ten Commandments to promote a religious viewpoint, but it can when the Commandments are shown to demonstrate the historical impact of religion on society.

So, what happens when a state or local government rejects another comparable monument from another religious organization? That's the case before the court this morning. Or, put another way, is a monument like a speech or a leaflet in a public park? The Constitution clearly forbids discrimination against speakers in the public square. If I can give a speech, so can you. If I can leaflet, so can you. It gets trickier, though, when you talk about monuments, limited space, and which groups want to speak through their monuments.

In this case, the city of Pleasant Grove, Utah, maintains a two-and-a-half-acre public space called Pioneer Park that features an eclectic collection of historic buildings and monuments. Among the donated monuments is a granite commemoration of the Ten Commandments given to the town in 1971 by the Fraternal Order of Eagles, an organization that donated similar monuments all over the country at the time "The Ten Commandments" movie came out.

The stated objective was to promote the Commandments as a moral code. In 2003, a religious group called Summum formally requested permission from Pleasant Grove to erect a monument commemorating its set of principles called the Seven Aphorisms. The Pleasant Grove City Council said no.

Ms. AYESHA KHAN (Legal Director, Americans United for Separation of Church and State): They had never said no.

TOTENBERG: Ayesha Khan is legal director for Americans United for Separation of Church and State.

Ms. KHAN: They had taken a stone from a Mormon temple. They had taken a water well. They had taken the Ten Commandments from the Fraternal Order of Eagles.

TOTENBERG: But not the Seven Aphorisms monument. Summum sued the city claiming that its right of free speech was being violated. Like other religious groups before them, Summum argued that it has a right of equal access to the public square. A federal appeals court agreed, and Pleasant Grove appealed to the U.S. Supreme Court, which will hear arguments in the case today.

Representing the city is Jay Sekulow, director of the Reverend Pat Robertson's American Center for Law and Justice. Sekulow usually argues for equal access for religious groups, but in this case he's arguing against it. He contends that when a government entity like Pleasant Grove accepts a monument, the monument's message becomes the government's message. And the government is allowed to speak for itself without being required to air competing viewpoints.

Mr. JAY SEKULOW (Director, American Center for Law and Justice): The government should have the ability to say, no, we're not going to have that speech on our property associated with us as the government.

TOTENBERG: Speaking and leafleting is protected in a public park, no matter how offensive the speaker. But he says monuments are different.

Mr. SEKULOW: There's no long history of private parties having the right to implant physical structures in public property on a permanent basis.

TOTENBERG: Sekulow says just because the U.S. government accepted the Statue of Liberty from France doesn't mean it has to accept a statue to tyranny. But Walter Dellinger, who represents the Summum religion, counters that the government of the United States specifically adopted the Statue of Liberty as its own, just as it has all national monuments. The city of Pleasant Grove has not done that, probably because it would cause other legal problems. More on that later. Instead, Dellinger maintains that the city has created a public park and routinely accepted all displays as expressions of private views.

Mr. WALTER DELLINGER (Appellate Attorney): The government is not allowed in that circumstance to edit out some private speech and prefer other private speech.

TOTENBERG: Pleasant Grove and its supporters say this argument would impose an impossible choice on government entities. They would either have to allow no privately donated monuments of any kind or else be inundated with privately donated slabs and statues, regardless of space or aesthetics. Summum's lawyer, Mr. Dellinger, counters that space and aesthetics are perfectly legitimate reasons for rejecting a monument because those criteria do not discriminate based on the content of the message.

Mr. DELLINGER: What the government can't do is to keep accepting additional displays, but choosing among them in a way that favors some private viewpoints over other private viewpoints.

TOTENBERG: If Pleasant Grove prevails, though, it will not be out of the woods. If, as it claims, it's adopted the monument as its own expression, that may win this case. But Summum would almost certainly go back to court contending that the city, by adopting the Ten Commandments as its own message, is preferring one religion in violation of the Constitution's ban on establishment of religion. It's a Rubik's Cube of constitutional law. Nina Totenberg, NPR News, Washington.

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