An interesting case was decided at the Supreme Court earlier this week. Pleasant Grove City, Utah v. Summum had centered on Summum’s contention that since the city had erected a Ten Commandments on public property, they were bound to erect Summum’s “Seven Aphorisms” as well. The Supreme Court ruled–unanimously–against Summum. The case was litigated on free speech grounds, and Summum has indicated they will refile the case on church/state separation grounds.
The case is interesting because of its implications for religious freedom in the military. One response to some complaints of “entanglement” with religion in the military has been the “all or none” solution. That is, the military must allow and support all religious persuasions or it must do so for none. Because of the logistical complexities of the former, the latter is often the course chosen (as is probably the intent of those who file such complaints). While this specific case was litigated only on free speech grounds, its implications for the “all or none” argument are significant.
Some have indicated that when organizations sue the government over religion, it is a “win-win” for opponents of religious interaction with government. Summum had nothing to lose. If they won, they would have opened the door for “competing” displays across the country. When they lost, some have claimed the Supreme Court handed them the perfect legal argument for a violation of the First Amendment.
Perhaps more importantly, many similar cases never make it to the Supreme Court, or to any court at all. Many municipalities are unwilling or unable to wage the financial battle required, and so give in to the litigious demands of these organizations–even if the government would have prevailed.
The city will now be forced to defend itself against a church/state separation case, in which Summum will claim that by erecting a Ten Commandments monument it has “established” a religion. Notably, the Supreme Court may not completely agree. Justices Scalia and Thomas wrote a concurrence with this case that emphasized that the existing Ten Commandments monument does not violate “so-called ‘wall of separation between church and State’”:
The city ought not fear that today’s victory has propelled it from the Free Speech Clause frying pan into the Establishment Clause fire. Contrary to respondent’s intimations, there are very good reasons to be confident that the park displays do not violate any part of the First Amendment…
The city can safely exhale. Its residents and visitors can now return to enjoying Pioneer Park’s wishing well, its historic granary—and, yes, even its Ten Commandments monument—without fear that they are complicit in an establishment of religion. (emphasis original)
Even so, as is often the case, Summum has nothing to lose.