In my earlier post on the Summum case, I promised a FindLaw column and a follow-up post. Mea culpa. I was scooped on FindLaw by Marci Hamilton, so I wrote about the Wyeth case instead. But I have at least one further set of thoughts about Summum that I thought worth spelling out here. The thought concerns the question lurking just below the surface in Summum: Where is the sweet spot between sufficient government distance from speakers' messages that a public forum has been created for free speech purposes and sufficient endorsement of a religious speaker's message that there is an Establishment Clause violation?
Justice Alito's majority opinion does not address the Establishment issue, which was not properly before the Court. However, what he says about government speech and the public forum doctrine--as a matter of free speech law alone--has some implications for Establishment.
Justice Alito argues that government acceptance of a privately donated monument as a permanent display on public property is government speech, even if the government message is vague and/or distinct from the message that the donor means to convey. Suppose that a municipal government adopts a policy of honoring "Great Scientists of History." The local Astronomy Club donates a statue of Copernicus, while the local Astrology Club donates a statue of Ptolemy. The city accepts both statues, even though it also rejects the local Superhero Club's donation of a statue of Batman on the ground that he is both fictional and not a scientist (but see Homer Simpson: "Batman's a scientist"). Even though the Astrology Club wanted to honor Ptolemy because of his Tetrabiblos, the city is not endorsing either astrology or the geocentric theory of the universe in accepting the statue. It is simply acknowledging that Ptolemy made important (if mostly wrong) contributions to science.
Of course, nothing in the Constitution forbids our fictional city from accepting the Copernicus statue while rejecting the Ptolemy statue, on the ground that the city endorses the heliocentric theory of the solar system. (Even better would be a statue of Aristarchus of Samos!) Indeed, the city could even accept the Ptolemy statue but not the Copernicus statue on the foolish ground that the citizens of this city believe in geocentrism---at least so long as that decision were neither driven by religion nor had the effect of endorsing geocentrism as a distinctly religious view (as opposed to a mistaken scientific view). And that is more or less what the Supreme Court's Establishment Clause jurisprudence says.
Critics have long argued that the Establishment Clause doctrine governing religious displays on public property is silly because of what can easily be ridiculed as the "plastic reindeer rule." (For one application, see County of Allegheny v. ACLU of Greater Pittsburgh). The basic idea is that the overall context of a display either impermissibly endorses the religious message of a specifically religious piece of that display (such as a creche or a Ten Commandments monument) or indicates something else, such as government respect for the diverse traditions of members of the community or historical recognition of an important source of widely shared values. The common sense displayed by Justice Alito's opinion for the Court in Summum shows that the plastic reindeer rule is more sensible than the critics recognize.
Posted by Mike Dorf