Pleasant Grove City, UT v. Summum

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Contents

[edit] Briefs and Documents

Docket: 07-665

Issue: Whether, under the First Amendment, privately donated monuments placed in a public park qualify as private or government speech.

Merit briefs

Amicus briefs

Oral Argument Transcript

Opinion REVERSED AND REMANDED in an opinion by Justice Alito

[edit] Pre-Argument Articles

[edit] Conference Call

Troy D. Cahill originally wrote the following for the Legal Times when the case was up for consideration at the Justices’ private conference on March 28, 2008.


In September 2003, the mayor of Pleasant Grove, Utah, received an unusual letter from Summum “Corky” Ra, the leader of a little-known religious organization based in Salt Lake City. As he had done in other towns in Utah, Ra sought permission to erect a monument to the “Seven Aphorisms of Summum” in a city park, alongside a depiction of the Ten Commandments that had been donated to the city more than three decades prior.

After city officials denied his request, Ra filed a suit alleging a violation of the free speech clause of the First Amendment. The U.S. Court of Appeals for the 10th Circuit eventually agreed, finding the park to be a traditional public forum and the Ten Commandments monument to constitute the private speech of the original donor.

At its private conference on March 28, the Supreme Court will consider whether to grant review in the case, which could impact whether municipalities around the country will continue to display donated monuments on public property. (The petition is No. 07-665, Pleasant Grove City, Utah v. Summum. At the same conference, the justices will also consider petition No. 07-690, Duchesne City, Utah v. Summum, which presents the same issue.)

Founded in Salt Lake City in 1975, the Summum faith believes Moses originally descended from Mount Sinai not with the Ten Commandments, but with a set of seven principles - or aphorisms - that he revealed to only a select few. Over the last decade, leaders of the faith have sought to erect monuments of the aphorisms in numerous Utah towns alongside displays of the Ten Commandments donated by private organizations.

Pleasant Grove denied the Summum’s request, citing a city requirement that permanent displays in the park either be directly related to city history or be donated by a group with longstanding community ties. (The Ten Commandments monument was donated by the Fraternal Order of Eagles.)

In the suit, the Summum contended the city violated its free speech rights by excluding its monument while allowing the Ten Commandments monument to be displayed in the park. After the district court denied the Summum’s request for a preliminary injunction, the 10th Circuit reversed with instructions to grant a preliminary injunction allowing the Summum to erect its monument in Pioneer Park.

The panel reached its decision after concluding the case implicated private speech in a public forum, not government speech. With regard to the type of forum implicated, the panel held that “the nature of the forum in this case is public” because a “city park” is “a traditional public forum.” Therefore, the panel reasoned, “the city’s restrictions on speech are subject to strict scrutiny” - a standard of review that the city’s denial of the Summum’s request would likely fail.

The city petitioned for rehearing en banc, urging the 10th Circuit to overrule circuit precedent holding that a monument donated to a city remains the private speech of the donor. The city contended that, because it owned and controlled the monuments erected in its park, the display of such monuments constitutes government speech that created no forum for private speech and, therefore, the city was free to make content-based or viewpoint-based choices.

The 10th Circuit denied en banc rehearing by an equally divided 6-6 vote. Writing separately, Judge Michael McConnell (in an opinion joined by Judge Neil Gorsuch) and Judge Carlos Lucero dissented from the denial of rehearing en banc. Then-Chief Judge Deanell Reece Tacha, author of the original panel decision, took the “unprecedented step” of filing a separate opinion in response to the dissents and specifically rejected the contention that this was a “government speech” case.

In its petition, Pleasant Grove - represented by Jay Sekulow of the American Center for Law and Justice - argues that the 10th Circuit’s ruling creates two circuit splits on important free speech issues. First, according to the petition, the 10th Circuit made an “analytical misstep” and created a conflict with the decisions of other circuits when it held that a donated monument which is owned, controlled, and displayed by a municipality is not government speech, but instead remains the private speech of the original donor.

Second, the 10th Circuit held that the placement of donated monuments in a government-owned park creates a public forum for monuments, while, according to the petition, other circuits hold that the government retains authority to select which structures, if any, to display. Pleasant Grove also emphasizes the practical impact of the 10th Circuit’s decision by contending that the ruling “creates a right of ‘equal access’ for the erection of permanent monuments.”

Represented by Pamela Harris of O’Melveny & Myers’ D.C. office, the Summum urges the court to deny certiorari. Depicting the case as “narrow and fact-specific,” the Summum contends that the 10th Circuit’s ruling does not announce a broad new rule and does not conflict with any decision from other circuits.

Instead, the Summum argues, the decision turns on the fact that the city historically has treated permanent displays on public property as private speech. Also limiting the scope of the decision, according to the Summum, is the fact that the decision only applies to privately donated and unsolicited displays and reaches only public parks and other public spaces that historically have been treated as public fora.

According to the Summum, these factors, in conjunction with the fact that the decision below arises from a denial of a preliminary injunction as opposed to a final judgment, make this case a poor candidate for Supreme Court review.

The Supreme Court may announce whether it will hear the case as early as March 31. - Troy D. Cahill

© 2007 ALM Properties Inc.

[edit] Argument Preview

[edit] Background

In September 2003, the mayor of Pleasant Grove City, Utah, received an unusual letter from Summum “Corky” Ra, the leader of a little-known religious organization based in Salt Lake City. As he had done in other towns in Utah, Ra sought permission to erect a monument to the “Seven Aphorisms of Summum” in a city park, alongside a depiction of the Ten Commandments that had been donated to the city more than three decades prior.

After city officials denied his request, Ra filed a suit alleging a violation of the free speech clause of the First Amendment. The U.S. Court of Appeals for the 10th Circuit eventually agreed, finding the park to be a traditional public forum and the Ten Commandments monument to constitute the private speech of the original donor.

The case could impact whether municipalities around the country will continue to display donated monuments on public property.

Founded in Salt Lake City in 1975, the Summum faith believes Moses originally descended from Mount Sinai, not with the Ten Commandments, but with a set of seven principles - or aphorisms - that he revealed to only a select few. Over the last decade, leaders of the faith have sought to erect monuments of the aphorisms in numerous Utah towns alongside displays of the Ten Commandments donated by private organizations.

Pleasant Grove denied the Summum’s request, citing a city requirement that permanent displays in the park either be directly related to city history or be donated by a group with longstanding community ties. (The Ten Commandments monument was donated by the Fraternal Order of Eagles.)

In the suit, the Summum contended the city violated its free speech rights by excluding its monument while allowing the Ten Commandments monument to be displayed in the park. After the district court denied the Summum’s request for a preliminary injunction, the 10th Circuit reversed with instructions to grant a preliminary injunction allowing the Summum to erect its monument in Pioneer Park.

The Circuit panel reached its decision after concluding the case implicated private speech in a public forum, not government speech. With regard to the type of forum implicated, the panel held that “the nature of the forum in this case is public” because a “city park” is “a traditional public forum.” Therefore, the panel reasoned, “the city’s restrictions on speech are subject to strict scrutiny” - a standard of review that the city’s denial of the Summum’s request would likely fail.

The city petitioned for rehearing en banc, urging the 10th Circuit to overrule circuit precedent holding that a monument donated to a city remains the private speech of the donor. The city contended that, because it owned and controlled the monuments erected in its park, the display of such monuments constitutes government speech that created no forum for private speech and, therefore, the city was free to make content-based or viewpoint-based choices.

The 10th Circuit denied en banc rehearing by an equally divided 6-6 vote. Writing separately, Judge Michael McConnell (in an opinion joined by Judge Neil Gorsuch) and Judge Carlos Lucero dissented from the denial of rehearing en banc. Then-Chief Judge Deanell Reece Tacha, author of the original panel decision, took the “unprecedented step” of filing a separate opinion in response to the dissents and specifically rejected the contention that this was a “government speech” case.

[edit] Petition for Certiorari

In its petition, Pleasant Grove argues that the 10th Circuit’s ruling creates two circuit splits on important free speech issues. First, according to the petition, the 10th Circuit made an “analytical misstep” and created a conflict with the decisions of other circuits when it held that a donated monument which is owned, controlled, and displayed by a municipality is not government speech, but instead remains the private speech of the original donor.

Second, the 10th Circuit held that the placement of donated monuments in a government-owned park creates a public forum for monuments, while, according to the petition, other circuits hold that the government retains authority to select which structures, if any, to display. Pleasant Grove also emphasizes the practical impact of the 10th Circuit’s decision by contending that the ruling “creates a right of ‘equal access’ for the erection of permanent monuments.”

Summum urged the court to deny certiorari. Depicting the case as “narrow and fact-specific,” the group contended that the 10th Circuit’s ruling does not announce a broad new rule and does not conflict with any decision from other circuits.

Instead, the Summum argues, the decision turns on the fact that the city historically has treated permanent displays on public property as private speech. Also limiting the scope of the decision, according to the Summum, is the fact that the decision only applies to privately donated and unsolicited displays and reaches only public parks and other public spaces that historically have been treated as public fora.

According to the Summum, these factors, in conjunction with the fact that the decision below arises from a denial of a preliminary injunction as opposed to a final judgment, make this case a poor candidate for Supreme Court review.

[edit] Merits Briefs

Pleasant Grove’s opening brief challenges the Tenth Circuit panel’s ruling on both government-speech and public-forum grounds. The brief argues, first, that Pleasant Grove’s decisions about the monuments to be displayed in Pioneer Park — including its decision not to put up the Summum monument — represent government speech. Governments at all levels routinely engage in a wide variety of speech expressing particular viewpoints, from Smokey the Bear reminding children that “Only You Can Prevent Wildfires,” to Nancy Reagan’s “Just Say No” campaign. And one well-established tradition of government speech is the selection and display of monuments on public land, like those on the National Mall. Monuments frequently serve as statements of respect for history, as commemorations of important individuals or entities in the community, as celebrations of culture, or as tributes to the defining significance of events or organizations.

The brief further argues that the mere fact that a monument was privately planned, created, and donated does not divest it of its governmental character, so long as a government made the ultimate editorial judgment to display it as consistent with the government’s message. Private parties have been instrumental in proposing or funding a large number of the United States’ most iconic monuments, such as the Vietnam Veterans’ Memorial on Washington’s Mall. And, outside of the monument context, courts have recognized that government speech remains government speech even when private parties are heavily involved — the most prominent example being the government’s “Beef: It’s What’s for Dinner” campaign.

Pleasant Grove argues that its selection of privately donated monuments for display in Pioneer Park fits within this long tradition of government speech. As the speaker, the city argues, it is under no obligation to modify its message to accommodate Summum’s speech; instead, Pleasant Grove “is entitled to say what it wishes” through its monuments and can “take legitimate and appropriate steps to ensure that its message is neither garbled nor distorted.”

In addition to its government-speech argument, Pleasant Grove also argues that Pioneer Park is not a forum for private parties to display permanent, unattended monuments. As an initial matter, Pleasant Grove contends that the relevant “forum” is not Pioneer Park at all, but rather the city’s own policy about whether and when to display monuments — a policy to which no private party, including Summum, has been given access. Because Pleasant Grove is solely responsible for that policy, there is no “public” forum whatsoever in this case.

Even ignoring that point, however, Pleasant Grove argues that the Tenth Circuit erred by focusing on Pioneer Park’s status as a traditional public forum — public places that “by long tradition or by government fiat, have been devoted to assembly and debate.” Although public parks are traditional public forums for transient speech such as leafletting, carrying signs, and oral utterances, there is no similar historic tradition of allowing private parties to deposit unapproved, unattended monuments in public parks.

Nor is Pioneer Park a public forum that the government has expressly designated for private speakers to speak through monuments. Pleasant Grove points out that its monument policy does not allow any private party carte blanche to erect a monument; instead, the city retains the ultimate discretion to decide whether and when to accept a monument for display on public property.

Pleasant Grove ends its brief by pointing out the “practical nightmare that would follow from embracing the decision below.” “[D]onated monuments are ubiquitous on governmental property,” and such monuments frequently display a one-sided message from the government. If private parties can insist on adding their own monuments, then public spaces will quickly become cluttered with physical structures — or completely silent, as governments close off their spaces to all monuments.

Summum’s merits brief relies heavily on the long-standing doctrine that public parks, like streets and sidewalks, are public forums and that government may not discriminate among those who would speak in such settings, based on the content of their message. If the Utah city were to open a section of its city park to allow the Eagles organization “to proclaim their understanding of the commandments handed down to Moses,” it certainly could not “prohibit Summum from speaking about its own version of those commandments,” the brief asserts.

The religious group argues that the case can be decided based on what it describes as the city’s concession “that the criteria it purportedly used to deny Summum equal access to its park are content- and speaker-based.” But the city claim of a policy of approving monuments related to town history is only an after-the-fact assertion to cover its “singular bias against Summum and its message,” the brief states. “The City has never denied a single other request to donate a display; only Summum has been barred from the park,” it says.

Even assuming that the Ten Commandments does relate to the community’s history by sending a message of religious freedom, the brief contends that there is no reason to question that the Summum monument fosters the same idea. The City, it adds, “transgressed the most fundamental First Amendment boundaries, taking sides in a theological debate by granting preferential access to a traditional public forum.”

It is not open to the city, Summum contends, to claim that the forum in question is not the park itself, but the monuments in the park. That claim is barred by the Supreme Court’s 1995 decision in Capital Square Review Board v. Pinette, holding unconstitutional a content-based exclusion of an unattended display from a city square — there, a cross sponsored by the Ku Klux Klan in Columbus, Ohio. That ruling treated the square as the forum, not the displays allowed there. The Court, Summum suggests, made clear is that a city may not do what Pleasant Grove did: “Award selective access to a particular mode of communicationo on the basis of content or viewpoint.”

Challenging the City’s assertion that the Ten Commandment monument put up by the Eagles has become “government speech,” Summum contends that the City cannot claim it controlled the message conveyed. It was the Eagles’ message at the outset, and the City has taken no formal action that would show that the Commandments are the local government’s own view.

Having not itself uttered the Commandments message “at the front end,” and having not adopted it “at the back,” Summum says, Pleasant Grove has not put forth “the defining characeristic of government speech.” Ownership of a message-bearing monument is not sufficient.

The City, the brief goes on, “cannot save its discrimination against Summum’s proposed speech by invoking cases in which the government ’speaks’ by exercising editorial discretion in selecting and compiling private speech it wishes to present to the public.” The government, under the First Amendment, may not edit private speech for content in a public forum, it says.

Finally, the Summum brief seeks to discount the slippery slope argument, contending that most monuments do, in fact, constitute government speech because officials typically control content of sponsored displays, or adopting that content after the fact. “All that is required is that the government take responsibility for its own message,” Summum concludes.

[edit] Amicus Briefs

The case has attracted a wide array of amici, with those briefs quite heavily weighted in favor of Pleasant Grove’s local government. Among those on that side of the case are states, cities, veterans’ groups, religious organizations, and conservative legal advocacy groups — but, perhaps most significantly, the federal government. Two amici briefs directly support Summum, while four others side with neither the City nor with Summum.

The United States, giving a poignant emphasis to the City’s side — and the federal government’s side — of the argument, points out that the Statue of Liberty is a private object placed in a national park. Joining in the case to defend its interest in controlling the messages that are uttered by permanent displays on federal property, it notes that the National Park Service “manages 391 park units, which span more than 84 million acres,” containing thousands of privately designed or funded “commemorative objects.” Much of the public sculpture in Washington, D.C., it points out, is in that category.

Emphasizing the “government speech” argument, the federal brief says that the selection of such objects bespeaks essential control — whether or not officials direct the original design of such objects, whether or not they were donated by private groups or individuals, or whether or not officials have explicitly adopted or disavowed the messages on those objects. The government has “countless displays” in its museums, libraries, cemeteries, battlefields and parks, all of which it came by through private donations, the brief says.

But, the Solicitor General’s filing goes on, even if; the Court were to conclude that some of the items displayed in government-run places like Pleasant Grove’s Pioneer Park speak the views of their private donors, public spaces usually are open for private utterances for limited duration only. “There is (to say the least) no longstandng tradition of private parties erecting permanent monuments in public parks on their own accord,” the Solicitor declares.

The federal brief offers the Court a formulation that can be paraphrased this way: a city park, however public it might be in other respects, is not a public forum when it comes to “the permanent display of privately donated objects,” so the government is constitutionally free to choose the objects that get displayed based on reasonable, nondiscriminatory criteria. That formulation, it contends, is satisfied in the Pleasant Grove situation.

[edit] Analysis

This case is outwardly simple — and partly because there is no church-state separation question at stake, even though the underlying contest here is between a city’s acceptance of a Ten Commandments monument and its rejection of a monument with an alternative religious message. The only part of the First Amendment put into play, by all sides in the case, is the Free Speech Clause, not the Establishment Clause nor the Free Exercise Clause. Thus, the deep divisions in the present Court over Ten Commandments dispolays may not necessarily reappear in deciding this case.

Some of the questions that are open to the Court do appear to be simple, at least superficially: Is a city park a public forum, or not? What makes it so? Whose message is on a monument donated by a private source? Is the choice of a display in a public space itself a message? If such selection amounts to a message, does that make it government speech?

But lurking in those questions are multiple layers of complication. Public forum doctrine, for example, now embraces an array of distinctions in how public spaces are used for expressive activity. Merely calling a space public does not necessarily open it to all utterances. Similarly, how to define “government speech” is increasingly difficult. What does the government have to do to make an utterance, in a public space, its own?

Running as an undercurrent in the case is another potential complication: how will the slippery slope argument play? Will the Justices’ vision be fogged by a cloud of potential horribles? The Solicitor General’s brief well illustrates this argument: “Under the decision below, a city’s display of a privately donated monument to Abraham Lincoln could entitle an individual to insist that the city permit the erection of a monument to Jefferson Davis, or a group could insist that the presence of the memorial in [Pleasant Grove’s] Pioneer Park commemorating the September 11 attacks entitles it to erect a memorial to the terrorists who carried them out.”

The Court is expected to decide the case before recessing next summer.

[edit] Oral Argument Recap

If a case does not fit within a constitutional pigeonhole, is there no other way to define it so that a legal dispute can be decided? That was the lingering question Wednesday as the Supreme Court tried to hack its way through a thicket of constitutional labels, with the legal fate of monuments donated by private groups and placed in government-owned parks hanging in the balance. The case of Pleasant Grove City v. Summum (07-665) seems to have much to do with “public forum,” “limited public forum,” “government speech,” “private speech,” and “viewpoint discrimination,” among other categories. But the Court’s members seemed unpersuaded that any of them is just right for this case. The Justices weren’t even sure which part of the First Amendment is really at issue — free speech, or church-state separation.

Justice Anthony M. Kennedy spoke disparagingly, saying “this case is an example of the tyranny of labels.” He also wondered somewhat forlornly: “Does the law always require us to adopt an all-or-nothing position?….Do we have to decide this case that it’s all or nothing?” Justice Stephen G. Breyer, on the same theme, asked: “Are we bound in these cases to apply what I think of as an artificial kind of conceptual framework or are we free to ask what seems to me to be at the heart of the matter?”

Justice David H. Souter suggested that “the tough issue here” is that “there is in fact a mixture, that it is government [speech] and private [speech]…We haven’t had this kind of a challenge before.”

Part — perhaps most — of the Court’s difficulty in pursuing a flexible basis for deciding the case was that standing before the Court were three lawyers each of whom argued for a simple, mainly label-driven outcome. One said mere acceptance of a monument, whatever its message, turns it into “government speech.” One said the choice of monuments is simply what “government as curator” does, as in selecting paintings for a museum. And one said that a public park is a “public forum,” so monuments can’t be accepted or rejected for display there on the basis of what they say.

Although the Court did not appear convinced that it could rely on such simplicity, Justice Antonin Scalia provided a reminder that some ground of decision had to be found. “We need a clear rule here,” he said. “We can’t expect the courts or the cities for that matter to investigate in every case what the degree of the Government’s involvement [is].” (It was plain that Justice Scalia, for himself at least, would be content with a decision that government may explicitly embrace a religious monument without fretting about either part of the First Amendment.)

The case centers, of course, on a Ten Commandments monument, donated by the fraternal group, the Eagles, and displayed in a city park in Pleasant Grove City, Utah, and an alternative religious monument, offered by the Summum sect but turned away by the city. And yet the case has not been tried as an Establishment Clause case; rather it is a Free Speech Clause dispute. But that distinction did not dissuade the Justices, from the earliest point in the argument, from pressing questions about whether the city’s embrace of the Eagles’ granite donation was a form of endorsement of its decidedly religious message.

Jay Alan Sekulow, the Washington, D.C., lawyer for the Utah city, had barely begun his argument when Chief Justice John G. Roberts, Jr., told him: “You’re really just picking your poison, aren’t you? I mean, the more you say that the monument is Government speech, to get out of the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause.”

Though Sekulow tried repeatedly to show that the Establishment Clause had never been a part of the case, the Justices maintained a continuing interest in whether that Clause would emerge, sooner or later, as a serious complication for governments that accept identifiably religious artifacts and endorse — implicitly if not explicitly — their message. Sekulow took that interest seriously, but argued that, if the Establishment Clause were at issue, the city’s acceptance of the Eagles’ monument was no more an endorsement of religion than is the depiction of Moses holding the Ten Commandments around the ceiling of the Court’s own chamber. “Our position,” he said, “is the Government hasn’t established anything by accepting the monument.”

Most of Sekulow’s argument was focused on the “government speech” claim. He said that, once the Eagles’ monument had passed legally into government ownership and control, it represented “Government speech.” And, in that category, the city government was free to select among the messages it wanted to convey to its citizens, he said. Jusotice Kennedy, however, was skeptical, telling Sekulow that “the ownership argument is not an answer” to concerns about discriminating between messages on monuments offered for display.

Deputy U.S. Solicitor General Daryl Joseffer took an equally simple approach, contending that the government is free to make whatever choices it wishes — at least as a First Amendment matter — when it is selecting monuments for display on public property. “We can have a Washington Monument and a Jefferson Monument without an Adams one,” he said.

He pushed his argument quite far, tellling Justice John Paul Stevens that the Court could refuse to put up the names of homosexual soldiers on the Vietnam Memorial, which stands on government park property in Washington. He suggested, when pressed, that there might be some “independent checks on the Government’s speech” under other constitutional clauses — a proposition that Justice Kennedy dismissed, saying “I don’t think you can avoid the hard part by saying, oh, other amendments of the Constitution might apply. The heart of the question is whether the Government may discriminate based on content, and that’s a First Amendment question.”

The federal government counsel indicated he saw no problem in Souter’s formulation of the problem as being one that involved mixed private and government speech. He noted that the government allows visitors to the Vietnam Memorial to put private objects next to the wall, conveying some message, but at the end of the day, the Park Service is free to carry them away to a government warehouse.

Pamela Harris, a Washington, D.C., lawyer representing the Summum religious movement, was devoted to her forum analysis: “a public park is a public forum.” Justice after Justice suggested qualifications in that formulation — including Kennedy, who responded to her by berating “the tyranny of labels” — but Harris was not dissuaded. She suggested that any government that wanted to convert a monument into a form of government speech could either take some formal action to accept its message as its own, and any government that wanted to limit monuments in its parks could adopt a policy to do so — as long as it was neutral about the content of what is allowed and what is banned.

Harris made clear that she is aware that, if Pleasant Grove did embrace the message of the Eagles’ Ten Commandments monument, it would then face an Establishment Clause challenge. She also indicated why the city would not want to do that anyway: “the version of the Ten Commandments on the Eagles monument isn’t even the Mormon version of the Ten Commandments,” and “that might raise sensitivities in this town.”

Justice Scalia told her bluntly that, when the time came to return to the Court to argue that Pleasant Grove had violated the Establishment Clause by embracing the Ten Commandments message, “you will say something like this: Anybody who comes into this park and seeing this monument owned by the Government, on Government land, will think that the Government is endorsing this message. That’s what you will say now.” She did not endorse that version, saying that an Establishment Clause problem might arise whether the government was acting on its own or interacting with private speech.

Justices Ginsburg and Souter suggested to Harris that she was oversimplifying public forum analysis, but that did not lessen her emphasis on that argument. The exchanges with the Court grew more diffuse as the Justices tried to probe just what steps a government would have to take in order to give itself the option of accepting a monument with one message but rejecting one with a different message.

[edit] Opinion Analysis

Justice John Paul Stevens provided this assessment of the Supreme Court’s new review of the constitutionality of placing religious monuments on government property: “…the effect of today’s decision will be limited.” In fact, in the 15 weeks between the Court’s hearing on Nov. 12 in Pleasant Grove City v. Summum (07-665) and the final decision Wednesday, one thing remained absolutely unchanged: the real dispute here was not about free speech, but about church-state relations. But that was not even argued.

At the oral argument, Chief Justice John G. Roberts, Jr., told a lawyer for the small Utah city defending its policy on a Ten Commandments monument in a city park: “You’re just picking your poison, aren’t you? I mean, the more you say that the monument is government speech, to get out of the Free Speech Clause, the more it seems to me you’re walking into a trip under the Establishment Clause.”

When the decision emerged, the Court was unanimous, at least in votes cast: government policy on placement of permanent markets in a public park is, constitutionally speaking, a form of government speech so there is no Free Speech Clause issue when a Ten Commandments monument is accepted but a monument to a different religion is excluded. The First Amendment clause protecting free speech only limits government regulation of private speech, and does not curb what the government can say, the Court said in the main opinion written by Justice Samuel A. Alito, Jr.

There was some quibbling among the Justices on that score, but not one of them voted against the victory the Court handed to Pleasant Grove City, Utah. But that may well not be a complete victory, and it certainly did not put an end to a constitutional controversy. Three Justices suggested quite plainly that, if the city is perceived as embracing the Christian dogma that is behind the Ten Commandments, the First Amendment’s Establishment Clause may come into play. But two Justices said there simply won’t be an Establishment Clause problem down the road. And that debate surely will go on.

Justice David H. Souter, the only Justice who did not join the Alito opinion, said that, from here on, if a monument accepted by the government “has some religious character, the specter of violating the Establishment Clause will behoove it to take care to avoid to avoid the appearance of a flat-out establishment of religion, in the sense of the government adoption of the tenets expressed or symbolized.”

Those musings, and similar ones in the joint opinion of Justices John Paul Stevens and Ruth Bader Ginsburg, obviously prompted Justices Antonin Scalia and Clarence Thomas to write their own opinion to dispute the point. Scalia, writing for those two, noted that “from the start, the case has been litigated in the shadow” of the Establishment Clause. But he went on to argue that “the city ought not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire…[T]here are very good reasons to be confident that the park displays do not violate any part of the First Amendment.”

Scalia recalled that, three years ago, the Court had upheld against an establishment challenge the placement of a Ten Commandments monument on the grounds of Texas’ state capitol. “There is little basis to distinguish the monument in this case,” the Justice wrote. “The city can safely exhale.”

The Alito opinion did not join directly in that debate, but did include a passing phrase suggesting that there are some restraints on “government speech,” such as a need to “comport with the Establishment Clause.” (Since Justices Scalia and Thomas said they joined the Alito opinion “in full,” Alito’s reference to the Establishment Clause was not strong enough to deny the opinion their support.)

It does appear, though, that future cases over displays of religion in the public square are not likely to turn on free speech analyses. Wednesday’s decision seems clearly to have scuttled that as a litigating strategy against, at least, permanent monuments. So religious displays will still be judged by the Court by the sometimes meandering interpretation of what the Establishment Clause forbids, or permits.

To that inquiry, the Court will return at its next Term. On Monday of this week, the Justices granted review of Salazar (Interior Secretary) v. Buono (08-472), an Establishment Clause case about a Christian cross that stands on a granite outcropping in a government “preserve” in southeastern California. There is some chance, though, that that case will go off on an issue of “standing” — who can complain in court about such displays.

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