Lynn v. Sekulow

Barry, the reason that you had “many moments of doubt” during the argument is that the Pleasant Grove City v. Summum case is about the meaning of a different provision of the First Amendment: “Congress shall make no law . . . abridging the freedom of speech.”


This case deals with the government’s authority to craft its own message and, as you recognize, “[w]hen government ‘speaks’ about best presidents or embraces the principle of liberty, it has every right to reject alternative views.” Here, Pleasant Grove owns and displays a variety of artifacts, monuments, etc. in its Pioneer Park that have historical relevance to the community or were donated by groups or individuals that have longstanding ties to the community. Among these is a Ten Commandments monument donated by the Fraternal Order of Eagles almost 40 years ago that, in the Mayor’s words, would “remind citizens of their pioneer heritage in the founding of the state.” By contrast, Summum has acknowledged that it has no ties to the community and its proposed monument has no historical relevance to the community. It is undisputed that the criteria used to accept or reject monuments are unrelated to any religious doctrine.


In short, this case is about whether private parties can require the government to alter its message, and it sounds like you agree with our position on that point. There is no First Amendment Establishment Clause claim in this case (which would be inconsistent with Summum’s Free Speech claim) but, in any event, a hypothetical claim would be similar to the one that the Court rejected a few years ago in Van Orden v. Perry, 545 U.S. 677 (2005) (plurality). It does not violate the Establishment Clause for the government to include the Ten Commandments among other historically relevant monuments, artifacts, pictures, plaques, etc. for a secular reason such as “remind[ing] citizens of their pioneer heritage in the founding of the state.”

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