Supreme Court Dispatches

Everything Vibrates

The Supreme Court grapples with the primordial ooze of the Summum case.

Let’s stipulate: Summum is weird. First off, having been founded in 1975, it violates my own base-line spiritual rule: “Never believe in any faith younger than you are.” With its pyramids, and mummification, and nectars, and hairless blue aliens, Summum is an existential stew of transcendental Gnosticism and particle physics: Isaac Luria meets Star Trek Voyager. But, as my husband would be quick to point out, yours truly has been known to fly into a panic when a meat fork touches her milk sink, shrieking and driving the offending utensil deep into the dirt of the kitchen avocado plant and then waiting the ritual interval until its kosherness is mystically restored. All of which merely illuminates the First Aphorism of Religion Cases: Only the religious convictions of other people are weird. Yours are perfectly rational.

Mormons settled the town of Pleasant Grove City, Utah, in 1850. Since 1971, the town’s “Pioneer Park” has featured the usual assortment of gardens, trees, and other historical relics, which sit alongside a massive permanent monument to the Ten Commandments—one of many such monuments donated by the Fraternal Order of Eagles (working to reduce juvenile delinquency) and Cecil B. DeMille (working to promote his Charlton Heston movie The Ten Commandments). In 2003, Summum’s founder, Summum “Corky” Ra, requested permission to donate a monument to the park celebrating the Seven Aphorisms upon which their beliefs are based. (The Seven Aphorisms are, in brief: the principles of psychokinesis, correspondence, vibration, opposition, rhythm, cause and effect, and gender.) Summum holds that these aphorisms were revealed to Moses at Mount Sinai, but he demurred because his people were not yet ready for them. The Decalogue was the rewrite.

The Pleasant Grove City Council denied Summum’s request to erect a monument. Summum sued, alleging that their free speech rights had been violated because the city could not display the Ten Commandments while denying the Seven Aphorisms. They lost in federal district court, prevailed before a three-judge panel of the 10th Circuit, and then blew the minds of the entire 10th Circuit, which ultimately declined to hear the case en banc. The city appealed. This brings me to the Second Aphorism of Religion Cases: They invariably represent the most forcefully argued, passionately defended constitutional gibberish ever produced in the federal courts. Whether Summum was denied a space in the park because Mormons think Summum is weird or whether there is some kind of equal right of access for all religious groups to erect monuments in public spaces is a question that lies at the murky interstices of doctrine dealing with religion, speech, government speech, and the law about the uses of public forums. It’s an unprecedented mess or, as Justice Anthony Kennedy puts it late in the morning, “a tyranny of labels.”

Summum isn’t before the court as a religion case. It was brought as a free speech case, and, as Jay Sekulow of the American Center for Law and Justice learns about three minutes into oral argument this morning, if he wins this case as a result of the court’s free speech jurisprudence, he will be back in five years to lose it under the court’s religion doctrine. The more zealously the city claims ownership of its Ten Commandments monument, the more it looks to be promoting religion in violation of the Constitution’s Establishment Clause.

Chief Justice John Roberts puts it to him this way: “You’re really just picking your poison. The more you say that the monument is ‘government speech’ to get out of the Free Speech Clause, the more you’re walking into a trap under the Establishment Clause. … What is the government doing supporting the Ten Commandments?”

Sekulow replies that the display is 100 percent Establishment Clause kosher in light of the Supreme Court’s ruling in a 2005 Ten Commandments case, which upheld a Texas display of them (on the same day it struck down a rather similar display in Kentucky). Justice Stephen Breyer was the deciding vote in each of those cases, which—read together—stand for the current Third Aphorism of Religion Cases: Government establishment of religion is only impermissible when it freaks out Justice Stephen Breyer.

Justice Ruth Bader Ginsburg suggests that the difference between the Ten Commandments display in Utah and the permissible one in Texas is that the Texas monument had a “40-year history, and nobody seemed troubled by it.” Sekulow retorts that the Utah display has a 36-year history, at which point Justice Antonin Scalia chuckles, “I think 38 years is the cutoff.”

Sekulow is arguing that the city’s display of the Ten Commandments needs to be analyzed under “government speech” doctrine and not as a debate about the park as a public forum. Once you have entered the domain of government speech, the state may pick and choose among messages without running afoul of the First Amendment. The idea is that governments get to speak their own values, even if they can’t favor anyone else’s. And Sekulow says a donated monument becomes government speech the very moment the government assumes control of it.

Justice John Paul Stevens wonders whether just calling something “government speech” means you can reject any one monument over another because you dislike its message. Justice David Souter says if that is the case, the city’s decision about whether or not to accept control of a monument on the basis of its message is “control with a vengeance.”

Of all the Summum aphorisms, my favorite is probably “everything vibrates.” Whoever wrote that had yet to meet Justice Clarence Thomas, who spends this morning, as he does every morning of oral argument, in perfect, motionless repose.

The Bush administration is in this case on the side of Pleasant Grove City. Stevens asks Deputy Solicitor General Daryl Joseffer whether the government, when it erected the Vietnam memorial, could have decided “not to put up the names of any homosexual soldiers.” Yes, says Joseffer: “When the government is speaking, it can choose who to memorialize and who not to.”

Breyer responds that all this law is making him crazy: “The problem I have is that we seem to be applying these subcategories in a very absolute way.” Thus spake the vote-one-way, vote-the-other-way justice of the last two Ten Commandment cases. Now he is balking at “artificial kinds of conceptual framework.” Thus, the Fourth Aphorism for Religion Cases: Doctrine is not your friend. Those six-part tests for limited public forums vs. designated public forums vs. displays of religious items on public grounds sometimes create more problems than they solve.

Justice Samuel Alito observes that there is a difference between free speech, in the classic sense of protests, leafleting, and speech-making, and hauling around massive granite monuments, then demanding public-forum analysis be applied to “the Washington Monument or the Jefferson Memorial.” Joseffer says that when the government is “acting as curator,” it can engage in viewpoint discrimination. In other words, it can choose the speech. “You can’t run a museum if you have to accept everything, right?” says Scalia.

Pamela Harris has 30 minutes to represent Summum, and Roberts hits her with the hypos: “You have a Statue of Liberty; do we have to have a statue of despotism? Do we have to put any president who wants to be on Mount Rushmore?” Harris replies that if a government wants to claim its displays represent “government speech,” then it needs to “adopt” or “convert” the privately donated monument into its own message. Scalia wonders why the government isn’t adopting the monuments merely by taking ownership. Souter thinks that if the dispute turns on formal government “adoption” of a monument, it’s a “silly exercise in formality.” Harris responds that it’s not just formality. Pleasant Grove refuses to endorse the message of the Ten Commandments as its own precisely because it wants to “have it both ways,” sidestepping Establishment Clause concerns, on the one hand, and eluding Free Speech problems on the other. Then she and Scalia do several laps around the speedway over what a formal “adoption” of a privately donated monument would even look like.

Even Ginsburg balks at Harris’ assumption that monuments and speeches are identical for First Amendment purposes: “From time immemorial,” Ginsburg says, “public parks have been places where people can speak their minds. But I don’t know of any tradition that says people can come to the park with monuments and just put them up.” Even the most doctrine-loving justices seem to be bothered by the practical problem of city parks becoming cluttered with hate monuments, weird stuff, and, eventually, rusted-out cars. But the problems on the other side are equally glaring. Cities should not be allowed to exclude unpopular groups based only on the content of their message. The state should not be able to keep gay soldiers’ names off the Vietnam Memorial. Just ask Moses if it stopped being speech just because it was carved in stone.

And thus we arrive at the Fifth (and final) Aphorism for Religion Cases: Pulling a crystalline, cogent rule out of the murk of the court’s First Amendment, public forum, and Establishment Clause doctrine is an act of creation too complicated for mere mortals. In fact, after this morning’s wild constitutional ride, anyone searching for clear, cogent rules need look no further than my favorite Summum aphorism: Everything vibrates.