Monday, April 07, 2008

Some More on Summum Case

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

9 comments:

BDG said...

Helpful column & post both. The last point you make has for a while struck me as a potential problem with the O'Connor "objective observer" version of her endorsement test (as opposed to Stevens' version, which seemed to be interested in the reactions of actual observers).

By explicating for the public what a fully informed observer would conclude, it must sometimes be the case that the court will lead some less-than-fully-informed observers to suffer the expressive harms establishment is supposed to prevent. Of course, O'Connor always used her test in the opposite direction -- to show that some actually offended observers were being unreasonable. But a principled application should sometimes cut the other way -- showing that it would be unreasonable *not* to be offended.

egarber said...

In your column, you write:

Such questions have divided the courts, but in the Summum case, the forum question is easily answered, because the case law makes clear that public parks (along with streets and sidewalks) almost invariably do qualify as public forums.

You then go on to cite how some of the circuit judges make a distinction about *temporary* vs. permanent use. Have there been any precedents on whether permanent monuments in an otherwise public forum setting fall outside content neutrality requirements?

Here in Ga, the Illinois Monument was donated (I think) for display at Kennesaw Mountain (a national civil war park). It seems rather weird that others would have a "right" to erect other monuments (say, of Chipper Jones) because of public forum privileges. Of course, in this case, the purpose of the park is to commemorate the civil war, so I'm wondering if that creates another government defense -- i.e., even if this *IS* a public forum, you can only submit displays that support civil war education.

On the other hand, what constitutes a "permanent" monument in the first place? The Summum case might represent a pretty easy example, but what about technology that makes it possible for such "monuments" to not be so permanent? I mean, it's not too hard to envision some company donating an electronic kiosk of some sort to a public area -- making messages as interchangeable as banner ads on a web page.

egarber said...

Answering my own technology scenario here, I might be a little too hung up on physical permanence. It might just be that part of the public area is "permanently" the government's, regardless of how often a message can change.

路傑 said...

免費A片, ut聊天室, AV女優, 美女視訊, 免費成人影片, 成人論壇, 情色交友, 免費AV, 線上a片, 日本美女寫真集, 同志聊天室, 聊天室交友, 成人文章, 成人圖片區, 色情網站, 辣妹視訊, 美女交友, 微風成人區, 色美媚部落格, 色情影片, 成人影片, 成人網站, 免費A片, 上班族聊天室, A片,H漫, 18成人, a漫, av dvd, 一夜情聊天室, 微風成人, 成人圖片, 成人漫畫, 情色網, 日本A片, 免費A片下載, 性愛, 成人交友, 嘟嘟成人網, 嘟嘟成人網, 成人貼圖, 成人電影, 成人, 中部人聊天室, 080中部人聊天室, 成人貼圖, 成人小說, 成人文章, 成人圖片區, 免費成人影片, 成人遊戲, 微風成人, 愛情公寓, 成人電影, A片, 情色, 情色貼圖, 情色文學, 做愛, 成人遊戲, 成人影城, 色情聊天室, 色情小說, 一葉情貼圖片區, 情色小說, 色情, 寄情築園小遊戲, 色情遊戲, 成人網站, 麗的色遊戲, 色情網站, 成人論壇, 情色視訊, 情色電影, aio交友愛情館, 言情小說, 愛情小說, 色情A片, 情色論壇, 自拍, 癡漢, , 俱樂部, 豆豆聊天室, 聊天室, 色情影片, 視訊聊天室, 免費視訊聊天, 免費視訊, 視訊交友90739 情人視訊網影音視訊聊天室 免費視訊聊天室 視訊聊天 視訊交友 美女視訊 視訊美女 視訊 免費視訊 免費視訊聊天 視訊聊天室 辣妹視訊 一夜情 色情a片 aio交友愛情館 情色電影 情色視訊 色情遊戲 色情 情色小說 一葉情貼圖片區 色情小說 色情聊天室 情色交友 成人論壇 成人網站 色情網站 情色論壇 小高聊天室 女同志聊天室 6K聊天室 080苗栗人聊天室 080聊天室 聊天室尋夢園 UT男同志聊天室 男同志聊天室 尋夢園聊天室 UT聊天室 聊天室 豆豆聊天室 A片 成人電影 成人貼圖 嘟嘟成人網 美女交友 本土自拍 成人交友 成人影片http://ssff01.3b8mm.com/

kutyhgvd said...

It is the holic gold which makes me very happy these days, my brother says holic money is his favorite games gold he likes, he usually holic online gold to start his game and most of the time he will win the cheap holic gold back and give me some holic online money to play the game.

. said...

酒店喝酒,禮服店,酒店小姐,酒店經紀,制服店,便服店,鋼琴酒吧,兼差,酒店兼差,酒店打工,伴唱小姐,暑假打工,酒店上班,日式酒店,舞廳,ktv酒店,酒店,酒店公關,酒店小姐,理容院,日領,龍亨,學生兼差,酒店兼差,酒店上班,酒店打工,禮服酒店,禮服店 ,酒店小姐,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,台北酒店,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,禮服店 ,酒店小姐,酒店經紀,酒店兼差,寒暑假打工,酒店小姐,經紀 彩色爆米花,經紀人 彩色爆米花,酒店傳播,酒店經紀 彩色爆米花,爆米花,童裝,童裝拍賣,童裝大盤,童裝寄賣,童裝批貨,酒店,酒店,童裝切貨,酒店,GAP童裝,酒店,酒店 ,禮服店 , 酒店小姐,酒店經紀,酒店兼差,寒暑假打工,招待所,

wsty said...

www.eshooes.com .
www.pumafr.com.
www.myshoess.com.
[url=http://www.pumafr.com]puma shoes[/url]
[url=http://www.eshooes.com]chaussures puma[/url]
[url=http://www.myshoess.com]nike air max ltd[/url]

酒店經紀ㄚ君姐姐 said...

,,姐.,便服/,,

freefun0616 said...

酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店小姐兼職, 便服酒店經紀, 酒店打工經紀, 制服酒店工作, 專業酒店經紀, 合法酒店經紀, 酒店暑假打工, 酒店寒假打工, 酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店小姐兼職, 便服酒店工作, 酒店打工經紀, 制服酒店經紀, 專業酒店經紀, 合法酒店經紀, 酒店暑假打工, 酒店寒假打工, 酒店經紀人, 菲梵酒店經紀, 酒店經紀, 禮服酒店上班, 酒店小姐兼職, 便服酒店工作, 酒店打工經紀, 制服酒店經紀,,