My FindLaw column today lays out the issues in the Summum case in some greater detail than I provided in my first post on the case. The column tentatively concludes that the government speech argument is persuasive, although I also suggest that the exclusion of the Seven Aphorisms monument may violate the Establishment Clause---a claim that wasn't raised by the plaintiff. Here I'll add two further observations.
1) There's a distasteful element of unclean hands on the part of the defendants in this case (which is really two cases against two cities). Before settling upon the argument that the city's own speech was involved---and therefore that the content-neutrality requirement doesn't apply---one of the defendants sold the small patch of park on which the Ten Commandments monument sat to the private organization that placed it there, and argued that therefore the city wasn't even implicated in the decision of who could speak. This was a heads-I-win-tails-you-lose legal strategy. And it will probably work.
2) It's a tricky business whether a Supreme Court decision against Summum would actually violate the Establishment Clause, but Summum's failure to rely on the Clause is not fully dispositive. Consider the following analogy: Suppose a group of Latino plaintiffs challenges a state employer's use of some hiring test on the grounds that it has a disparate impact without sufficient justification, in violation of Title VII. Suppose further that the court agrees, and orders as a remedy, that the state stop using the challenged test but only for Latino applicants. That would violate Equal Protection Clause by putting in place an express racial/national origin classification. Thus, the court could not order this remedy even if the original complaint did not claim as a basis for relief that the state employed an express racial classification. Indeed, the court couldn't order this remedy even if the plaintiffs wanted it.
Of course, there's a substantial difference between the foregoing hypothetical example and the actual Summum case. In the hypothetical employment discrimination case, the Equal Protection violation via express discrimination doesn't arise until the court orders a remedy, and it's the remedy itself that is the violation. One therefore can't hold it against the plaintiffs that they failed in their original complaint to challenge something (the remedy) that hadn't yet come into existence. By contrast, should the Supreme Court reverse the 10th Circuit in the Summum case, and thereby uphold the exclusion of the 7 Aphorisms monuments from the two Utah parks, it will simply restore the status quo ante the lawsuit---and Summum was in a position to complain about that status quo ante under the federal Establishment Clause when it filed suit, but chose not to.
Yet perhaps that's too narrow a way to look at the case. When it comes to public display cases, the Establishment Clause (or at least the Supreme Court's doctrine interpreting the Establishment Clause) manifests a concern with public meaning. The public meaning of Summum's having been denied the ability to erect its monuments in the first place was essentially nil, as nobody outside of the Summum leadership paid much attention. But now that the case has made it to the Supreme Court, the case is garnering intense attention. Even though the Establishment Clause issue is not strictly speaking raised, and even if the Court writes an opinion saying it expresses no opinion on Establishment issues, the case will undoubtedly be treated by the mainstream media as one about how the government can act towards a minority religion. So in that sense, a decision against Summum by the Supreme Court would be at least a little like my hypothetical employment discrimination case: It will create a new constitutional issue that wasn't exactly present when the suit was filed. (Which is not to say that Summum necessarily should win, only that the case is harder than it would be if it did not involve religious speech.)
Posted by Mike Dorf