Stymied, the Summum changed tactics. To get around the 10th Circuit's finding, the group argued that favoring one faith over another in public monument selection constitutes not religious discrimination under the Establishment Clause but "viewpoint discrimination," a free speech violation. That decision proved pivotal, and timely, as it was the same argument that many Christian-right groups were using to score big victories in the Supreme Court to win permission for religious groups to use public school facilities, among other things. Under its free speech argument, Summum won a trio of lawsuits, though still failed to get the Aphorisms installed. The cities of Ogden and Salt Lake chose to remove the Ten Commandments rather than install the Aphorisms. In 2003, the city of Duchesne took the extraordinary measure of privatizing a 10-by-10-foot square around its Ten Commandments monument to prevent a Summum installation.
In 2003, the group sued Pleasant Grove for violating its free speech rights. Again, the case went to federal court. But this time, the court ruled against Summum. The group appealed to the 10th Circuit, where a three-judge panel ordered Pleasant Grove to let Summum install their monument. Pleasant Grove asked for a rehearing on the case by the full circuit, which was denied. But the conflicting opinions of the judges on the rehearing issue, particularly that of Judge Michael McConnell, who is regarded as one of the country's leading experts on religion and the law, practically begged the Supreme Court to take up the case. (The decision also emboldened Reverend Phelps to make his request for the Matthew Shepard monument.) The case attracted the attention of the religious right and its leading public interest law firm, the American Center for Law & Justice, which had pioneered the use of free speech arguments to expand religion into the public sphere. But in this case it took the exact opposite position, coming out against the sect. With help from the well-known ACLJ lawyer Jay Sekulow, Pleasant Grove appealed, and Wednesday, Sekulow argued the case before the Supreme Court.
Sekulow's position in the case conflicts with his earlier arguments against religious discrimination. Based on his litigation record, you'd think he'd support more religion in public space, not less. But Sekulow and his supporters don't want just any religion in public space—just their own. They want the government to be able to discriminate among religious faiths. Christian-right groups also fear that if Pleasant Grove loses this case, Ten Commandment monuments nationwide will be threatened, and ultimately removed, as they were in Ogden and Salt Lake. Hence the brief in Summum filed by Roy Moore, the former Alabama Supreme Court chief justice who lost his job after he ignored a federal court order to remove an enormous Decalogue from his courthouse. Now head of the Foundation for Moral Law, Moore issued a statement on the Summum case saying, "Neither the U.S. Constitution nor the radical opinions of federal courts give judges a right to act as park managers to install the beliefs of a new age religion foreign to our culture and heritage."
You'd think that in a case like this, civil liberties groups would be eager to defend Summum's free speech rights from the right wingers in the high court. Instead, the case has totally befuddled the usual defenders of religious minorities. Sadly for Summum, most of those groups are sitting this one out. Americans United for Separation of Church and State and other civil liberties groups filed amicus briefs, but supporting neither side. They simply argued that the case should not be decided on free speech grounds at all and suggested that the court instead correct the 10th Circuit's screwy 1970s-era decision on the Establishment Clause that said the Ten Commandments weren't a religious icon. The ACLU chose to abstain from the case altogether. Summum's supporters are few and far between. The reason, of course, is Fred Phelps. A win for Summum would bar governments from discriminating in its choice of monuments in places like the National Mall, and essentially force federal and state authorities to either let everyone in or get rid of the monuments altogether.
As much as the ACLU and Americans United oppose the government's discrimination against a religious minority, in this case, there is simply no good outcome for them. "You're dammed if you do, you're dammed if you don't," says Ayesha Khan, the lawyer for Americans United.
The only hope for Summum is Chief Justice John Roberts' prediction in oral arguments on Wednesday: They'll be back. The current case only involves the First Amendment free speech rights. Summum never asked the court to consider whether Pleasant Grove had violated the Establishment Clause by turning down its Seven Aphorisms, which it appears the city clearly did. Roberts noted that the court could expect to see Summum before the court in about five years after it litigates the other issue. After all, Roberts asked, "What is the government doing supporting the Ten Commandments?"
Photo from Summum website.