High Court Hits
The 10th Circuit Court of Appeals ruled in favor of the group, arguing that the park is a public forum for private speech. Local officials do not so much fear the message that the proposed addition would deliver, but instead the Pandora's box of requests that could follow. The case stirs memories of two separate Supreme Court rulings in 2005 concerning the public display of the Ten Commandments. The first, McCreary County v. ACLU, was a 5-4 ruling where the Court determined that the Ten Commandments were unconstitutionally posted in a Kentucky courtroom. Justice Souter, writing for the majority, raised Establishment Clause concerns, suggesting that the "...text of the Ten Commandments (is) distinct from any traditionally symbolic representation," not to mention the fact that the document "...stood alone," and was "...not part of an arguably secular display."
The second case, Van Orden v. Perry, was decided by a similar 5-4 margin, with only Justice Breyer changing sides. It concerned a Ten Commandments monument on the lawn of the Texas State Capitol, one of 21 historical markers on the site. Breyer, in a concurring opinion, acknowledged that "...the Establishment Clause does not compel the government to purge from the public sphere all that in any way partakes of the religious." What distinguishes this monument is its 40-year presence on the site, the fact that it stands with other historical, non-religious markers, and its donation by a private group, yes the Fraternal Order of Eagles.
In Utah, the Ten Commandments statue appears safe, but might other additions be welcomed in a public space that clearly welcomes private speech? On the other hand, shouldn't the city have some leverage in determining reasonable limits on the addition of more statues in a place they manage? Time, place, and manner restrictions seem reasonable here. Moreover, the complexion of the Court has changed since 2005, with Chief Justice Roberts replacing Chief Justice Rehnquist, a one-for-one conservative trade-off, and Justice Alito replacing Justice O'Connor, a conservative for a moderate trade-off. Since O'Connor voted with the coalition opposed to the public display of the Ten Commandments in both 2005 cases, Alito's presence could constitute a change.
I predict a 5-4, if not a 6-3 decision in favor of Pleasant Grove City to determine the time, place, and manner of private religious displays on public property so long as they are content neutral. The case is Pleasant Grove City v. Summum, and it will likely be decided in the fall term.
A second First Amendment case echoes last year's decision concerning the right of the state to pass legislation enabling non-union teachers to opt out of a payroll deduction system that allocates some of their union dues for political purposes. The unanimous opinion ruled that the law was constitutional, negating the union's argument that their First Amendment associational rights were undermined in the process. The case was Davenport et al. v. Washington Education Association.
This time around the Court will scrutinize an Idaho law that prohibits cities, counties and school districts from making payroll deductions for donations to political candidates and parties. The Ninth Circuit Court of Appeals ruled that only cities, counties, and school boards can make such a decision independently, but the state cannot impose this upon them. In the Washington decision, the Court ruled that states could enable an opt-out system, but were not required to do so. Idaho, on the other hand, refuses to allow this choice, thus presenting the Court with a different dilemma altogether.
I see another conservative-liberal split here, with the five conservatives siding with the state under the premise of federalism, but also denying a union's unencumbered right to extract campaign donations from member paychecks. The four liberals will claim that the associational rights of unions are undermined by this law, calling for its repeal in dissent. We will once again have to wait for the fall term, with oral arguments and a final decision coming soon thereafter.
Sticking with the subject of the Supreme Court, Nathan Richie and I interviewed Dan Transue, a local gun rights activist who attended the Mar. 18 oral arguments in the Second Amendment case District of Columbia v. Heller. Click here to listen to the podcast, and here to access Don's web site gunmap.org.
Finally, next week the Freedom Museum will host Jan Crawford Greenberg, author of Supreme Conflict: The Inside Story of the Struggle for Control of the United States Supreme Court. I've made my way through this readable tome twice, and highly recommend it to a lay audience interested in the internal dynamics of the current Court. To RSVP for the free program on Apr. 10 from 6-7:30pm please click here.