Contact: Jeff Huett

February 25, 2009

BJC: High Court decision walks government into Establishment Clause problem

WASHINGTON – The U.S. Supreme Court has ruled that the First Amendment’s free speech clause does not require Pleasant Grove City, Utah, to allow the placement of a monument to a faith group’s “Seven Aphorisms” next to a Ten Commandments monument in the city’s Pioneer Park.

In Summum v. Pleasant Grove City, Utah, the court heard an appeal arising from Summum’s request to display the monument. The High Court considered the question of whether the lower court went too far by applying free speech principles to the city park in a manner that requires the city to allow the Summum monument.

J. Brent Walker, executive director of the Baptist Joint Committee, said “the government should not be able to pick and choose the favored religion and then erect a monument endorsing the religion’s scriptural precepts.”

The court’s decision expressly leaves the door open to a future Establishment Clause claim against the city,” Walker said.

Justice Samuel Alito, who authored the opinion for the court, wrote that the “decision does not mean that there are no restraints on government speech. For example, government speech must comport with the Establishment Clause.”

In a friend-of-the-court brief, the Baptist Joint Committee and a coalition of religious freedom advocates argued that the case has an Establishment Clause dimension should have been before the court.

“Because of the peculiarities of Tenth Circuit jurisprudence, Summum couched its legal claims principally in the language of free speech and viewpoint discrimination. The proper locus of its complaint is, however, the Establishment Clause – which the Founders intended to serve as the principal bulwark against the government’s resort to rank denominational prejudice,” the brief states. “And although Summum has yet to develop its Establishment Clause claim and marshal its evidence, there is enough in the record to suggest that Pleasant Grove’s conduct may well have had a discriminatory object.”

Baptist Joint Committee General Counsel K. Hollyn Hollman said the case is a reminder that governmental involvement in religious expression does so to the detriment of religion itself and that the facts of this case demonstrated the inherent problem with religious displays on government property.

“The proclamation of religious Scripture or principles should come from people of faith, not the government,” Hollman said.

“Groups are free to design and construct monuments that support their faith and place them on private property,” Hollman said. “However, when the government decides which religious displays to accept and rejects others, it raises questions of fairness and invites suspicion from those who rightly expect government to be neutral in matters of religion.”