Newswise — The U.S. Supreme Court heard oral arguments Wednesday (Nov. 12) in Pleasant Grove City v. Summum, in which a group called the Summum church wants to be able to erect a religious monument in a Utah city park. Daniel O. Conkle, the Robert H. McKinney Professor of Law at the Indiana University School of Law--Bloomington, says the Court's decision could turn on whether it rules that erecting the monument is private speech in a public forum (the park) or government speech subject to the control of city officials.
"The Supreme Court recently has addressed Establishment Clause challenges to governmental displays of the Ten Commandments," Conkle said. "In a pair of 5-4 decisions in 2005, the Court ruled in one case that county displays of the Commandments in Kentucky were unconstitutional, but it ruled in the other case that the State of Texas did not violate the Establishment Clause in displaying a Ten Commandments monument that had been donated to the state some years ago by a private group, the Fraternal Order of Eagles, and that thereafter had been maintained on the outdoor grounds of the Texas State Capitol.
"The case before the Court today also involves a Ten Commandments monument -- one that, as in the 2005 Texas case, was donated years ago by the Fraternal Order of Eagles and that since has been displayed on public property, this time in a city park. But today's case does not include an Establishment Clause challenge to the monument, which probably would fail based on the Supreme Court's decision in the Texas case. Instead, the challengers are asserting a Free Speech claim, i.e., an equal access claim, asserting that they should be allowed to donate their own religious monument -- the Seven Aphorisms -- to be displayed by the city along with the Ten Commandments.
"If the privately donated monuments are treated as private speech and if the park is a traditional public forum even as to such monuments, then the Free Speech, equal-access claim is a strong one," Conkle said. "Conversely, and perhaps more likely, the Supreme Court might rule that donated monuments are government speech that do not give rise to equal access claims and/or that a city park is not a public forum with respect to permanent monuments. If the Court reasons in that manner, then the government would be free to decide which donated monuments to accept, even if its decisions were based on content and perhaps even if its decisions were based on viewpoint (as long as it didn't violate the Establishment Clause)."
Conkle teaches Constitutional Law, the First Amendment, and Law and Religion. His research addresses constitutional law and theory, religious liberty and the role of religion in American law, politics and public life. He is the author of numerous articles, as well as a book titled Constitutional Law: The Religion Clauses (Foundation Press, 2nd Edition, 2009). He also is an adjunct professor of religious studies and a Nelson Poynter Scholar at IU's Poynter Center for the Study of Ethics and American Institutions.
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