A Monument to Government Power

Yesterday morning the nine Justices of the Supreme Court of the United States heard oral arguments over whether a city in Utah is obligated, under the U.S. Constitution, to erect a monument in its park celebrating the Seven Aphorisms, the tenets of a local religion founded in 1975 by a former supply-company manager named Claude “Corky” Nowell, later known as Corky Ra, who said he was visited by “advanced living beings.” He called the religion that resulted Summum.

[Wonder Land] AP

How would he decide?

For example, Aphorism II, the Principle of Correspondence, holds: “As above, so below; as below, so above.” Bear in mind that Pleasant Grove City, Utah, for some 30 years has had a monument in the city park to the Ten Commandments, donated by the Fraternal Order of Eagles. Mr. Ra said Moses came down from the mountain with two sets of tablets, decided the people weren’t ready for the Seven Aphorisms and gave them the “more readily understood” Ten Commandments.

Technically, this is not an establishment-of-religion case; the city’s monument could as easily be to the Boy Scouts’ motto. Pleasant Grove City told Summum it had no obligation to erect a monument for any group that desired one.

In 2007, the federal appeals court for the Tenth Circuit ruled in favor of Summum, giving the religion permission to put up its Seven Aphorisms monument in Pioneer Park. The Supreme Court will decide whether the Summums of America deserve their own patch of the public green.

Laughable though it looks, Pleasant Grove City v. Summum is a textbook example of tensions that have pulled our courts between noble readings of the Constitution — in this case, the First Amendment’s speech protections — and what the average person might call the common-sense requirements of running a civil society.

The common-sense argument against Summum’s claim, which the U.S. Solicitor General made to the Supreme Court, was that it would cause a clutter of public monuments. If a city let private donors contribute a memorial to local boys who died in the Iraq war, would it have to accept another group’s monument to pacifism? As Chief Justice Roberts asked yesterday, “Do we have to put any president who wants to be on Mt. Rushmore?”(As of now, perhaps.)

New York City’s friend-of-the-court brief noted that Central Park’s 52 monuments celebrate Alice in Wonderland (my favorite), the Pilgrims and Hans Christian Andersen. So why not, under a “right of equal access,” a monument to the Simpsons?

The path to sweet reason, though, is itself not uncluttered in this case.

Pleasant Grove City’s refusal is rooted in what is called “government speech doctrine.” While the First Amendment won’t let government infringe a citizen’s private speech, its own speech has no limits — none. Government can say whatever it wishes. For example, the government had no obligation to offer equal-time rejoinders to Nancy Reagan’s “Just Say No.” As an earlier court noted: “Simply because the government opens its mouth to speak does not give every outside group . . . a First Amendment right to play ventriloquist.”

Not so fast, say a host of religious- and free-speech rights groups supporting Summum. It would be dangerous to give cities carte blanche power to decide which group’s permanent monument to a particular cause or idea gets government approval, and which does not.

In July, former Justice Sandra Day O’Connor, temporarily filling in on the Fourth Circuit, ruled that the Fredericksburg, Va., city council, under the government-speech doctrine, could forbid a council member from invoking Jesus in a session-opening prayer. The Rutherford Institute argues this lets the government silence anything it doesn’t like.

This is the sort of case that cries out for the judicial wisdom of Solomon, long dead in the U.S. Indeed it was the departure from common-sense wisdom that pitched the country into endless legal thickets, most notably the ruined learning environments in public schools.

Going back 40 years, a series of Supreme Court decisions broadened constitutional protections for high-school students. Conservative legal groups today support such protections lest schools ban, say, prayer groups.

One understands those concerns. What happened, though, is that many school principals concluded that the Court had killed discretion in disciplinary matters. Administrators pulled back, and to this day in many urban schools, virtual chaos runs rampant through the halls. Terrified and appalled parents sought refuge in charter schools or private schools.

A win here for Summum and its Seven Aphorisms likely would cause many cities to wash their hands of the problem by clearing their parks of all monuments, a desolate result.

The Supreme Court should recognize the need to let civic institutions function — whether schools or city hall. No public power deserves carte blanche. Give them latitude to write clear rules to operate parks, public spaces and public schools. If Summum doesn’t like it, they can buy a piece of Utah and open the Park of the Seven Aphorisms. I might even make a visit.

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