Justices perplexed by 7 Aphorisms case
This article first appeared in the St. Louis Beacon: November 13, 2008 - The case of the 7 Aphorisms is perplexing because it involves the intersection of two First Amendments doctrines - the right of free speech and the ban against an establishment of religion. Another difficulty is that the case involves the court's confusing public forum doctrine, which generally bars the government, in a tradition forum like a public park, from discriminating against speech based on its content.
Justice Kennedy, one of the most pro-free speech justices on the court, remarked in frustration that the case involved a "tyranny of labels." He and other justices seemed to want to avoid being boxed in by the restrictive public forum analysis. (See Scotusblog analysis of the argument.)
Pleasant Grove City was one of a number of governments around the country that accepted a donation of the 10 Commandments from the fraternal group called the Eagles. The monuments were erected around the time of the 10 Commandments movie.
The Summum religious order argues that if the city accepted the 10 Commandments in its park, it must accept the 7 Aphorisms, which it claims Moses brought down from the mountain before the commandments. (Read the 7 Aphorisms .)
Lawyers for the group maintain that the public forum doctrine barring government discrimination based on the content of speech, requires the city to accept its monument.
Lawyers for the city counter that the monuments in the park - unlike leaflets distributed over a few hours or days - are government speech. That potentially runs the city into problems with the Establishment Clause, however. The court has generally allowed 10 Commandment monuments that are historical, but hasn't allowed officials to post the Commandments to make a statement.
The lawyer for the government argued that the government's power to choose what speech it supports is so broad that it could remove the names of homosexual soldiers from war memorials in Washington.
He also made the point that it is just fine for the government to decide to have a monument for Washington and Jefferson and not Adams.