FREE SPEECH — Tony Mauro reports in Legal Times that in its decision issued yesterday in Pleasant Grove City v. Summum, the U.S. Supreme Court concluded that a city that once allowed placement of a Ten Commandments
memorial on public park land can say no to a similar monument proposed
by another religious group—in this case a memorial displaying the
"Seven Aphorisms" of Summum, a small religious sect.
The rationale: placement of a memorial on public land is a
form of government speech, not the kind of private speech in a public
forum that invites First Amendment scrutiny.

When Summum followers challenged the Utah city's refusal of its
monument in 2005, the U.S. Court of Appeals for the 10th Circuit
treated it as a kind of private speech taking place in a public forum,
a combination of factors that went against the city. The appeals court
ruled that the city could not refuse the Summum request without
compelling justification.

But Alito said a different model was needed, because while speakers
or protesters in a park come and go, "monuments, however, endure."
Public parks cannot accommodate every organization that wants to place
a memorial, he said.

By calling it government speech, Alito was able to skip over the
knotty problems of public forum doctrine and private speech. "The
ruling has a sort of housekeeping function," by helping categorize
similar cases in the future, says Patricia Millett, partner at Akin, Gump, Strauss, Hauer & Feld, co-counsel for Pleasant Grove City.

But Alito and concurring justices said the decision does not solve
every problem posed by religious monuments in parks. "Government speech
must comport with the Establishment Clause," Alito warned, an
acknowledgment that in some circumstances, a government speaker who
shows preference for one religion over another might be challenged.

So it's a winner-take-all race to the park?  If Summum had arrived first and the city said no, could it have later accepted any other religious monument? Or is it the rule that monuments reflecting beliefs less central to the Judaeo-Christian tradition—and thus unlikely ever to be recognized as congruent with American tradition and hence "government speech"—are inherently subject to rejection? This conclusion may confirm the old saw that a religion is a cult with political power.