Must cities accept donated monuments? High court to rule

McClatchy NewspapersNovember 10, 2008 

WASHINGTON — A monumental controversy may force Supreme Court conservatives to choose between veterans and public piety.

In a closely watched case, justices will consider on Wednesday when cities and states can be compelled to display donated monuments that may contain religious messages. The resulting decision could shape what public parks look like nationwide.

"If the authorities place a statue of Ulysses S. Grant in the park, the First Amendment does not require them also to install a statue of Robert E. Lee," the attorneys general of Florida, Texas and 11 other states declared in a legal filing.

However, a Utah-based religion called Summum contends that once a city accepts the donation of a private display or monument, it must accept others as well. The church leaders want a monument displaying Summum's "Seven Aphorisms" placed in Pioneer Park in Pleasant Grove City, Utah.

The Seven Aphorisms are complex, but are summed up in words including "psychokinesis," "vibration" and "gender." The unconventional character of the religion shouldn't undermine its constitutional rights, advocates say.

The city park already includes numerous monuments including one containing the Ten Commandments.

"The city has never denied a single other request to donate a display; only Summum has been barred from the park," argued Summum's appellate attorney, Walter Dellinger, a Duke University law school professor, who added that "the record shows a targeted anti-Summum gerrymander, aimed at suppressing one particularly disfavored religious view."

The hour-long oral argument Wednesday morning in Pleasant Grove City v. Summum will test freedom of speech more than freedom of religion. Its resolution will revolve around two core questions.

One is whether a donated monument in a public park amounts to government speech or private speech. The government can limit its own speech in a way that it can't constrain private speech.

The other core question is whether a city park is a "public forum," where free speech enjoys maximum First Amendment protection.

These questions have ignited widespread interest because of the potential consequences. Twenty-two friend-of-the-court briefs have been filed, on behalf of everyone from the Boy Scouts of America to Atheist Alliance International.

These briefs reveal some seemingly scrambled alliances that may complicate the court's decision making.

Veterans groups including the American Legion and the Veterans of Foreign Wars, for instance, are warning about the dangers of accepting arguments made by a religious group.

"Any city with a memorial honoring our veterans would . . . also have to allow a memorial dishonoring them," the veterans groups claim.

Some of the nation's most famous military monuments, including the U.S. Marine Corps Memorial depicting the famous Iwo Jima flag raising, have been privately donated and placed on public land.

The legal uncertainty already has impeded some military monuments. Citing the potential "ramifications" of the Summum case, Pentagon officials earlier this year postponed plans for relocating to U.S. soil a monument to 40 American men who died when a B-17 Flying Fortress crashed in June 1943 near Bakers Creek, Australia.

The Bush administration sides with Pleasant Grove City. If the court orders the city to allow Summum's display, Solicitor General Gregory Garre argued, the federal government could be compelled to allow discordant private displays at numerous national parks and historic sites, including, potentially, the Statue of Liberty.

Founded in 1975, Summum expresses the view that "esoteric teachings . . . are taught to select advanced souls who then progress to new spiritual levels." The religion offers "modern mummification," and says its Seven Aphorisms were delivered to Moses before he received the Ten Commandments.

"The most basic of First Amendment rules is that in a traditional public forum like a public park, a city may not discriminate among speakers based on the content of their speech or the identity of the speaker," Dellinger argued.

McClatchy Newspapers 2008

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