Pleasant Grove v. Summum

The Supreme Court ruled unanimously this week that a government, when it accepts a donated monument for a public park, has not in so doing turned that park into a public forum on which anyone can place a monument.  The opinion is here (pdf).  I particularly liked this bit:

Respondent contends that [the issue of unwieldy proliferation of monuments] “can be dealt with through content-neutral time, place and manner restrictions, including the option of a ban on all unattended displays.” . . . On this view, when France presented the Statue of Liberty to the United States in 1884, this country had the option of either (a) declining France’s offer or (b) accepting the gift, but providing a comparable location in the harbor of New York for other statues of a similar size and nature (e.g., a Statue of Autocracy, if one had been offered by, say, the German Empire or Imperial Russia).

The monument in question would have declared the “seven aphorisms” of an obscure cult.  Given that religion was involved, it’s inevitable that people would look carefully at what the decision means in the ongoing legal battles over the Ten Commandments and Christmas trees and so forth.  Both those in favor of religion displays and those opposed to them claim to be happy with the result.

Both sides must be peering deeply into the tea leaves, because I don’t see anything in the decision that would give comfort to either side. The majority opinion hinged entirely on the idea of government speech; neither Freedom of Religion nor the Establishment clause arose in it.  If we look to the concurrences, we can find one (by Scalia and Thomas) that speaks positively about the legality of religious displays; one (by Souter) that is negative; and one (by Stevens and Ginsberg) that is deliberately vague, but seems negative.  The remaining four justices do not commit themselves.  (Breyer adds another concurring opinion whose significance I am unable to discern.) So Pleasant Grove seems only to narrow the range of possibility to somewhere between 7-2 and 3-6.

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