Summum and the Establishment Clause

Abstract

Chief Justice Roberts: [T]he more you say that the monument is Government speech to get out of the first, free speech—the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause. If it’s Government speech, it may not present a free speech problem, but what is the Government doing speaking—supporting the Ten Commandments? Justice Kennedy: [I]t does seem to me that if you say it’s Government speech that in later cases, including the case of the existing monument, you’re going to say it’s Government speech and you have an Establishment Clause problem. I don’t know if—I’m not saying it would necessarily be resolved one way or the other, but it certainly raises . . . an Establishment Clause problem. Justice Souter: But . . . [t]he Government isn’t disclaiming [the Ten Commandments monument]. And the difference[,] it seems to me[,] between you and your friends on the other side is you want this clear statement [that the city has adopted the monument]. You want a statement—for example if you took Justice Scalia’s statement, that would satisfy you, and it would also be the poison pill in the Establishment Clause. Isn’t that what’s—I mean, that’s okay with me. I don’t see that as an illegitimate object. I was a Van Orden dissenter . . . . I. A Ghostly Dialogue A specter haunts Pleasant Grove City v. Summum—the specter of religion. Although both sides insistently litigated the case under the Free Speech Clause, the prospect of an Establishment Clause violation continually emerged during oral argument, slightly beyond the Supreme Court’s purview. The written statements that the Court ultimately produced conjured a similar ghostly apparition located just outside the boundaries of the holding. Whereas Justice Alito’s majority opinion simply determined that the display of the Ten Commandments monument constituted government speech, a circumstance that precluded the possibility of a free speech-based challenge, the concurring opinions of Justices Scalia (joined by Justice Thomas) and Souter again raised the Establishment Clause specter