The Supreme Court grapples with the primordial ooze of the Summum case.
Justice John Paul Stevens wonders whether just calling something "government speech" means you can reject any one monument over another because you dislike its message. Justice David Souter says if that is the case, the city's decision about whether or not to accept control of a monument on the basis of its message is "control with a vengeance."
Of all the Summum aphorisms, my favorite is probably "everything vibrates." Whoever wrote that had yet to meet Justice Clarence Thomas, who spends this morning, as he does every morning of oral argument, in perfect, motionless repose.
The Bush administration is in this case on the side of Pleasant Grove City. Stevens asks Deputy Solicitor General Daryl Joseffer whether the government, when it erected the Vietnam memorial, could have decided "not to put up the names of any homosexual soldiers." Yes, says Joseffer: "When the government is speaking, it can choose who to memorialize and who not to."
Breyer responds that all this law is making him crazy: "The problem I have is that we seem to be applying these subcategories in a very absolute way." Thus spake the vote-one-way, vote-the-other-way justice of the last two Ten Commandment cases. Now he is balking at "artificial kinds of conceptual framework." Thus, the Fourth Aphorism for Religion Cases: Doctrine is not your friend. Those six-part tests for limited public forums vs. designated public forums vs. displays of religious items on public grounds sometimes create more problems than they solve.
Justice Samuel Alito observes that there is a difference between free speech, in the classic sense of protests, leafleting, and speech-making, and hauling around massive granite monuments, then demanding public-forum analysis be applied to "the Washington Monument or the Jefferson Memorial." Joseffer says that when the government is "acting as curator," it can engage in viewpoint discrimination. In other words, it can choose the speech. "You can't run a museum if you have to accept everything, right?" says Scalia.
Pamela Harris has 30 minutes to represent Summum, and Roberts hits her with the hypos: "You have a Statue of Liberty; do we have to have a statue of despotism? Do we have to put any president who wants to be on Mount Rushmore?" Harris replies that if a government wants to claim its displays represent "government speech," then it needs to "adopt" or "convert" the privately donated monument into its own message. Scalia wonders why the government isn't adopting the monuments merely by taking ownership. Souter thinks that if the dispute turns on formal government "adoption" of a monument, it's a "silly exercise in formality." Harris responds that it's not just formality. Pleasant Grove refuses to endorse the message of the Ten Commandments as its own precisely because it wants to "have it both ways," sidestepping Establishment Clause concerns, on the one hand, and eluding Free Speech problems on the other. Then she and Scalia do several laps around the speedway over what a formal "adoption" of a privately donated monument would even look like.
Even Ginsburg balks at Harris' assumption that monuments and speeches are identical for First Amendment purposes: "From time immemorial," Ginsburg says, "public parks have been places where people can speak their minds. But I don't know of any tradition that says people can come to the park with monuments and just put them up." Even the most doctrine-loving justices seem to be bothered by the practical problem of city parks becoming cluttered with hate monuments, weird stuff, and, eventually, rusted-out cars. But the problems on the other side are equally glaring. Cities should not be allowed to exclude unpopular groups based only on the content of their message. The state should not be able to keep gay soldiers' names off the Vietnam Memorial. Just ask Moses if it stopped being speech just because it was carved in stone.
And thus we arrive at the Fifth (and final) Aphorism for Religion Cases: Pulling a crystalline, cogent rule out of the murk of the court's First Amendment, public forum, and Establishment Clause doctrine is an act of creation too complicated for mere mortals. In fact, after this morning's wild constitutional ride, anyone searching for clear, cogent rules need look no further than my favorite Summum aphorism: Everything vibrates.
Dahlia Lithwick writes about the courts and the law for Slate.