More Than the Sum(mum) of Its Parts?

Today the Supreme Court handed down a decision in one of the more intriguing cases of this term, Pleasant Grove City, Utah v. Summum. A unanimous ruling, it's more interesting for the issues it raises going forward, rather than the one it resolved.

The case involved the attempts of Summum, a religion founded in Salt Lake City in 1975, to place a monument in a park in Pleasant Grove City. The park already contained one of the Ten Commandments, donated to the city in 1971 by the Fraternal Order of Eagles. Summum sought to place in the park a monument setting forth its Seven Aphorisms which, it contends, God handed down to Moses before the Commandments. Pleasant Grove City declined, on the basis that the Summum monument was not related to the history of the town and was not being donated by a group with "longstanding ties to the . . . community."

Summum sued, unsuccessfully in the district court. But on appeal, the Tenth Circuit Court of Appeals reversed. Relying on an earlier decision in which it held that such Ten Commandment monuments were private, not government, speech that the town couldn't reject without a compelling justification. No such justification existed.

The Supremes took the case and, as I said above, unanimously held in favor of the town and reversed the Tenth Circuit. The Court concluded - quite correctly, it seems - that such monuments become government speech once given to the town and therefore the decision was based on the town's First Amendment speech rights, not Summum's. The park, while a traditional public forum open to all when it comes to transitory speech, wasn't similarly open to the erection of permanent monuments.

What makes the decision really interesting is that, as Scalia puts it in a concurrence, the case was a Free Speech Clause case, but was "litigated in the shadow of the First Amendment's Establishment Clause." In other words, if the Ten Commandments monument if government speech, how can that government endorse that particular religious speech and not provide a similar platform for others?

In another concurrence, Souter suggests that this is a thornier problem than Scalia makes it out to be. I tend to agree. I hope Summum reloads and fires another complaint at Pleasant Grove City. I doubt the Court has heard the last of Summum.

The New York Times has a good article covering the basics of the decision.

UPDATE: Let me clear up something that is rampaging through the comments to the Times piece. The only issue decided in this case was whether the town's refusal to accept the Summum monument violated the Free Speech Clause of the First Amendment. Summum did not press, for whatever reason, any Establishment Clause argument. The Court (aside from Scalia) was correct not to address the Establishment Clause issue, as it wasn't before them.