Cert Grant in Summum

Tue Apr 1 13:31:43 PDT 2008

Another twist on this issue is Justice Breyer's controlling opinion in Van Orden, which relied in part on the private donation of the Ten Commandments monument as support for his determination that the monument did not violate the Establishment Clause:  "The tablets, as displayed on the monument, prominently acknowledge that the Eagles donated the display, a factor which, though not sufficient, thereby further distances the State itself from the religious aspect of the Commandments' message."  Van Orden v. Perry, 545 U.S. 677, 701-02 (2005) (Breyer, J., concurring in the judgment).

It seems that for Breyer, the private donation--and the notation thereof on the monument itself--made the government less than fully responsible for the content of the display, even though, by every indication, the display had become largely the government's expression and responsibility.  So, not private speech, but not fully governmental speech either?  I.e., not sufficiently private to trigger 1st Am. forum analysis, but partially private nonetheless, i.e., private enough to help insulate the government from an Establishment Clause challenge?

Dan Conkle
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Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail conkle at indiana.edu
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From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Tuesday, April 01, 2008 12:17 PM
To: Law & Religion issues for Law Academics
Subject: RE: Cert Grant in Summum

Leaving aside the specifics of the Summum litigation, I think there are some interesting issues raised by this case. When the government accepts permanent structures from private groups to be placed on public property, can these decisions ever be evaluated under forum analysis? Would the government's decisions ever create a designated limited public forum? If not, would it ever be proper to characterize these decisions and the display of the structures as a nonpublic forum subject to the prohibition against viewpoint discrimination. If the answer to these questions is at least "yes, in some circumstances," then we have to figure out how we  distinguish those situations in which forum analysis is appropriate from those in which it is not.
Certainly, the question of whether or not you can ever have a forum of permanent displays is an open one for the lower federal courts. There are several cases challenging content and viewpoint based restrictions on the donation of tiles and bricks for the halls and walkways of public schools. The tiles and bricks are clearly intended to be permanent, not temporary. There is no clear consensus among the courts that have adjudicated these cases as to the proper analysis to be applied.
The Summum case may be much easier to resolve because there were so few displays accepted by the government for the area at issue - the alleged forum. But that still leaves open the question of whether the government's acceptance of a sufficiently large number of private permanent displays can ever implicate free speech concerns.
Alan Brownstein
UC Davis School of Law

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Monday, March 31, 2008 1:40 PM
To: religionlaw at lists.ucla.edu
Subject: Cert Grant in Summum

The Supreme Court today granted cert in an unusual Ten Commandments case, Summum v. Pleasant Grove City.  The case was brought by a religious organization that wanted to put up its own religious monument in a city park, given that there was already a Ten Commandments display there.  The Tenth Circuit found for the plaintiffs, agreeing with them that the park was a traditional public forum from which the plaintiffs could only be excluded upon the showing of a compelling interest.  The panel's decision seems pretty dubious - I imagine the Supreme Court will reverse, with a logic along the lines of Judge McConnell's dissent from denial of rehearing en banc.

Best,
Chris

Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
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