Wednesday, July 20, 2011
Senior District Judge Maurice M. Paul (N.D. Fla.) ruled last week that a Ten Commandments monument displayed just outside the Dixie County Courthouse is government speech and violates the Establishment Clause. Judge Paul ordered Dixie County to remove the monument within 30 days.
The case involves a privately funded monument, over five-feet tall and weighing six tons, that displays the Ten Commandments and text reading "LOVE GOD AND KEEP HIS COMMANDMENTS." Here's a picture, courtesy of the ACLU of Florida:
The private funder secured County Commission approval before initiating the project. After the ACLU sued, the Commission issued its "Monument Placement Guidelines," which purported to establish a limited public forum on the courthouse steps, where the monument is located.
The county government thus argued that the monument was private speech, protected under the First Amendment Speech Clause. Judge Paul didn't buy it. He ruled that the monument is government speech. He noted that while the monument is not tethered and contains the name of the private funder (with an indication that the monument belongs to the private funder), it nevertheless has all the appearances of permanence; and its location "make[s] it clear to all reasonable observers that Dixie County chooses to be associated with the message being conveyed." Op. at 10. (Judge Paul compared the case to the OT 08 case, Pleasant Grove City v. Summum, in which the Court ruled that the placement of a privately-funded, permanent monument in a government park, alongside other privately-funded monuments, is government speech. If so there, so much more so here--a permanent monument on the courthouse steps.) To get a sense, take a look at this picture, also courtesy of the ACLU of Florida:
Judge Paul then ruled that the monument violated the Establishment Clause:
As noted previously, permanent displays carry the indicia of government speech. This strongly implies endorsement of the message being conveyed. However, beyond the mere permanence of the monument, the context of the display establishes Dixie County's endorsement of its religious message. The monument is five-feet tall, made of six tons of granite, and sits alone at the center of the top of the steps in front of the county courthouse that houses every significant local government office. "No viewer could reasonably think that it occupies this location without the support and approval of the government." By permitting the display of the monument in this setting, "the county sends an unmistakable message that it supports and promotes" the religious message that appears on it.
Op. at 12 (citations to County of Allegheny v. ACLU omitted).
Two terms ago, the Court ruled in Pleasant Grove that a privately-funded, permanent monument in a public park, alongside several other privately-funded monuments, was government speech (and not a public forum). As such, the government's rejection of a privately-funded monument was not subject to scrutiny under the Free Speech Clause. But it would have been subject to scrutiny under the Establishment Clause (if the plaintiff-respondent raised it). (That doesn't mean the plaintiff-respondent would have won, just that the government's rejection of its monument would have been subject to Establishment Clause analysis.)
Justice Souter noted in concurrence that the play between the government speech doctrine and the Establishment Clause hadn't been worked out. He worried that a government, in order to dodge Establishment Clause problems, would wisely accept more monuments whenever an accepted monument had a religious character--"safety in numbers"--but that this strategy would in turn would "make it less intuitively obvious that the government is speaking in its own right simply by maintaining the monuments." The result: The government could unwittingly create a speech forum, diluting its government speech defense and forcing it, under the Free Speech Clause, to accept monuments from all comers, including those that don't represent its views. If so, Justice Souter argued,
the government could well argue, as a development of government speech doctrine, that when it expresses its own views, it is free of the Establishment Clause's stricture against discriminating among religious sects or groups. Under this view of the relationship between the two doctrines, it would be easy for a government to favor some private religious speakers over others by its choice of monuments to accept.
Whether that view turns out to be sound is more than I can say at this point. It is simply unclear how the relatively new category of government speech will relate to the more traditional categories of Establishment Clause analysis, and this case is not an occasion to speculate.
Souter Concurrence, at 3. (For more on Justice Souter's worry, check out Prof. Mary Jean Dolan's (John Marshall) recently posted piece The Cross National Memorial: At the Intersection of Speech and Religion.)
If Pleasant Grove wasn't an occasion to explore the play between the government speech doctrine and the Establishment Clause (because the latter wasn't raised), this case isn't a likely candidate to explore it either, but for a different reason: There's only one monument. This is a straight-forward Establishment Clause case and not one that raises issues at the intersection of these two doctrines.