c. 2008 Religion News Service

WASHINGTON _ A small Utah religious sect told the U.S. Supreme Court on Wednesday (Nov. 12) that it should be allowed to erect a monument to its core beliefs alongside an existing Ten Commandments monument in a city park.

Pamela Harris, a lawyer for Summum, a 33-year-old spiritual group known for its unique practice of mummification, said the exclusion of its tenets by officials in Pleasant Grove City, Utah, is unfair.

“That’s a violation of the core free speech principle that the government may not favor one message over another in a public forum,” she said.

But Jay Sekulow, the lawyer representing the city, said a lower court erred when it decided that Summum had the right to place its “Seven Aphorisms” in a city park because a Ten Commandments monument had been placed there by the Fraternal Order of Eagles.

“When the government is speaking, it is free from the traditional free speech constraints of the First Amendment,” argued Sekulow, chief counsel of the American Center for Law and Justice, a law firm founded by religious broadcaster Pat Robertson.

Though the case is technically about free speech, another First Amendment question _ governmental establishment of a particular religion _ was raised almost immediately.

“It seems to me you’re walking into a trap under the Establishment Clause,” Chief Justice John Roberts told Sekulow.

Justice Antonin Scalia said the court may need to consider what the government is saying about the Ten Commandments.

“If the government is saying the Ten Commandments are the word of God, that’s one thing,” he said. “And if the government is saying the Ten Commandments are an important part of our national heritage, that’s something else.”

The Supreme Court wrestled with Establishment Clause cases regarding the Ten Commandments in 2005, determining that one set of the biblical laws displayed with other monuments outside the Texas Capitol was unconstitutional, while displays in Kentucky courthouses were not.

When Justice Ruth Bader Ginsburg noted that the monument permitted at the Texas Capitol was more than 40 years old, Sekulow said the similar monument in Pleasant Grove City had been there since 1971.

Both the city and the U.S. government created various scenarios that could result if the Supreme Court sided with the Denver-based 10th Circuit Court of Appeals, which had ruled in Summum’s favor. Deputy Solicitor General Daryl Joseffer argued that the Vietnam Veterans Memorial “did not open us to a Viet Cong memorial,” nor would the pending memorial to the late Rev. Martin Luther King Jr. require the government to erect a monument to his assassin.

The justices, in turn, asked questions that led to an additional range of hypothetical situations. Justice Stephen Breyer wondered if a government park could permit sculptures from Democratic sculptors but not Republican ones. Justice Samuel Alito asked if the government could refuse to list names of certain deceased soldiers on a memorial because it disagreed with their views.

Joseffer said permitting partisan sculptures was not likely. As for memorials, he said, “We do get to decide who we memorialize on the Mall because it’s government speech.”

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Justices grappled with arguments over whether the monuments in question are “government speech,” “private speech” or a mixture of both.

Sekulow said many monuments across the country _ from the Statue of Liberty to the Eagles’ Ten Commandments _ were originally donated by a third party but are now under government control.

“They allowed it, accepted it, and allowed it to be erected on their property,” he said of Pleasant Grove City.

Ginsburg wondered if government speech, in the case of the Ten Commandments monument, actually implies endorsement. “Isn’t this really the government endorsement of the Eagles’ message?” she asked.

Justice David Souter indicated that this consideration of private and governmental speech may be leading to new ground for the court, saying, “We haven’t had this kind of challenge before,”

While the city mostly argued over matters of “speech,” Summum focused on whether the city park is a “forum” where various kinds of speech are welcomed, whether from people parading through or permanent monuments placed there.

“A public park is a public forum,” Harris said.

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Since the 10th Circuit Court of Appeals ruled in Summum’s favor, groups ranging from municipalities to religious liberty groups have raised concerns about the precedent that could be set by the nation’s highest court.

“We’re facing the threat of either having to accept any and all monuments that are given to us regardless of whether they meet the criteria of having history with our city or whether we have to remove all monuments of all kinds,” said Pleasant Grove City Mayor Michael W. Daniels after the arguments.

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A file photo of Summum founder Corky Ra is available via https://religionnews.com