Last week's decision in the case of Pleasant Grove City v. Summum was hardly surprising. The Court held unanimously that a Utah city park's acceptance of a permanent 10 Commandments monument did not, as a matter of free speech doctrine, obligate the city to accept a permanent monument commemorating the "Seven Aphorisms" of the Summum religion.
As I noted in a FindLaw column when the Court granted certiorari last spring, this was the only result one could have reasonably expected, at least treated as a case involving speech issues alone. I also noted at the time that more difficult issues were presented by the Establishment Clause but that those were not technically before the Court. And not surprisingly, dueling concurrences by, on one side, Justice Scalia (joined by Justice Thomas), and on the other side, Justice Stevens (joined by Justice Ginsburg), Justice Breyer (flying solo), and Justice Souter (solo and only concurring in the judgment), argue that if the Establishment Clause issue were squarely before the Court it would change nothing (Scalia and Thomas) or it would potentially change the analysis (Stevens, Souter, Ginsburg, and Breyer).
I'll have some further thoughts on the Summum case in my FindLaw column next week. For now, though, I'll just make an observation about song lyrics. Not surprisingly, for a case involving park monuments, the Court drew examples from well-known monuments, such as the Statue of Liberty, the Iwo Jima Memorial, and the Vietnam Memorial. In pursuit of the point that government acceptance of a privately placed monument may convey a different message to different park visitors, Justice Alito (for the Court) discussed the "Imagine" memorial in Central Park, which is located near the 73rd Street entrance, opposite the Dakota Hotel, and pictured above. In a footnote, Justice Alito quotes in full the lyrics to "Imagine" (minus the "wooo-hoo-oo-oo-oo") thus perhaps revealing himself as a Lennon fan. (Who knew?)
That's great, but it is unfortunate, in my view, that no one (except me?) has been giving props to Lou Reed in connection with the Summum case. Many of the examples posed by the city's supporters have paired the Statue of Liberty with a hypothetical Statue of Tyranny or, less commonly, a Statue of Bigotry. But it was Lou Reed who coined the latter phrase in his fabulous song "Hold On" (lyrics here) off of his equally fabulous 1989 album New York. So this is just to say thanks, Lou.
Posted by Mike Dorf