Pleasant Grove City, Utah, has a website.  It also has a park.  In that park is a monument containing the Ten Commandments.  Some years back, a religious group called Summum asked to put up its own monument in the same park.  Summum’s beliefs are encapsulated in what are called the “Seven Aphorisms.”  The city rejected the offer.  On Wednesday, the U.S. Supreme Court will be hearing all about this.  My partner-in-blog Jay Sekulow will be arguing for the city.  Over at Americans United for Separation of Church and State, we are arguing neither for the city or for Summum.  We have told the court in a friend-of-the-court brief that this whole matter has been argued under the wrong legal framework from the start and that the Supreme Court should send it back for re-litigation.

The 10th U.S. Circuit Court of Appeals ruled in favor of Summum on “free speech” grounds.  Although I am sympathetic to Summum’s concerns that it seems one religion is clearly being favored over their own in Pleasant Grove City, I can’t buy into the specific legal argument they are using.

This dispute is before the Supreme Court because the city did the wrong thing in 1971 by accepting the “gift” of a Decalogue display.  The Ten Commandments had nothing to do with the establishment of the city any more than the Ten Commandments are the basis for the first ten amendments to the Constitution, the “Bill of Rights.”  The commandments were and are theological statements, not legal norms for America.  In fact, much of what is prohibited by the commandments is not the subject of laws in the United States.   We don’t criminalize being bad to your parents, blasphemy, or coveting your neighbor’s SUV (or, these days, his Prius).  Pleasant Grove City should have rejected the monument and suggested that the donor give it to (let’s get wild here) a church.  They could then avoided showing governmental preference for some religions over others and not had to deal with the possibility of so many kinds of other religious groups seeking inclusion of their icons that you wouldn’t be able to find grass to sit on in the park. 

Unfortunately, the city made a mistake.  If Summum wins under its “free speech” argument, we could see demands to erect even permanent displays promoting hate in parks throughout the nation.   Think of Fred Phelps (whose website I will not link to).  On the other hand, if some of the claims of the city prevail, we’ll see cities using all manner of excuses to justify inclusion of some religious messages and rejection of others.  The best solution is for the Supreme Court to listen patiently tomorrow and then in a few weeks write a brief opinion that notes: “This case isn’t about freedom of speech; it is about whether religion is being promoted by a city in Utah.”  They should then send the case back to the proper square one and instruct the lower court to ask the question that should have been asked all along: Does this violate the non-establishment principle of the First Amendment?