NDExpert: Law professor Garnett says Supreme Court’s religious display decision won’t end the argument

| By: Susan Good

Rick Garnett ND Expert

The Supreme Court decided today that Pleasant Grove, Utah, is not legally required to permit a religious group to erect a display in a city park which already features a monument to the Ten Commandments.

Unanimously overturning a lower court ruling which required the town park to accept a monument to the “Seven Aphorisms” of the Summum Church, the decision came as no surprise to Notre Dame Law School professor Richard W. Garnett, but he believes it raises further questions about freedom of speech and public displays with religious themes.

“In a long line of cases,” Garnett said, “the court has ruled that governments cannot, when regulating public property, discriminate against private expression on the basis of the speaker’s viewpoint. If, for example, it allows an animal-rights group to display a poster in a public forum, like a park, it cannot turn around and deny similar access to a hunters’ group. Therefore, according to the Summum group, the government’s decision to accept the Ten Commandments monument required it to also accept and display, on equal terms, the Summum exhibit.”

According to Garnett, the court’s decision emphasizes that “when the government is speaking for itself—and conveying its own messages—it is not necessarily required to provide equal access to other speakers. The Free Speech Clause, in other words, prevents the government from regulating or discriminating against private expression; it does not regulate the content of the government’s own speech. And, the justices believed, the Ten Commandments display is, in this context, the government’s own expression. After all, a permanent monument is not like a speaker on a soapbox.”

Garnett said that today’s ruling is consistent with several recent decisions in which this court, “seems to be pulling back from an expansive understanding of ‘the public forum.’

“In the 1990s,” he said, “the justices found ‘public forums’ everywhere, and the result was a number of decisions requiring the government to provide increased access to public property and funds for private speakers. The Roberts court appears to regard this expansion as unfortunate, and as excessively limiting the discretion government officials have over public property and state-supported speech.”

In Garnett’s view, today’s ruling is unlikely to end the larger argument.

“The First Amendment’s no-establishment clause, as the court understands it, does not permit the government to act or speak in a way that establishes or ‘endorses’ religion,” he said. “So, the question remains whether the Ten Commandments display is constitutional. We can now expect the nature of the dispute to change, from a free-speech controversy to a church-state one.

“Given the Court’s previous decisions regarding such displays, it seems likely—Justice Scalia said as much today in a concurring opinion—that the Pleasant Grove monument would survive an establishment clause challenge. After all, it is one monument among many, and—taken in context—it probably does not convey to the so-called ‘reasonable observer’ a specific government endorsement of religion. But, stay tuned.”

Contact: Professor Garnett at 574-631-6981 Garnett.4@nd.edu

Originally published by at newsinfo.nd.edu on February 25, 2009.