Scalia Sees No Danger of ‘Establishment Clause Fire’ After Summum Ruling
The U.S. Supreme Court’s decision yesterday allowing a Utah park to decline a monument to a religious group’s Seven Aphorisms was unanimous, but concurrences showed differences over how the case would have turned out under a different analysis.
The opinion by Justice Samuel A. Alito Jr. said Pleasant Grove City, Utah, did not violate the First Amendment’s free speech clause by deciding which permanent monument to display in a public park. The town had accepted a Ten Commandments display but turned down the Seven Aphorisms request by a religious group known as Summum.
The religious group did not bring its challenge under the establishment clause, and Alito didn’t reach that issue. But six concurring justices weighed in, offering their views on the scope of the decision, the New York Times reports.
Justice Antonin Scalia wrote a concurrence, joined by Justice Clarence Thomas, that said the Ten Commandments monument did not present a constitutional problem, according to the Times. “The city ought not fear that today’s victory propelled it from the free speech clause frying pan in to the establishment clause fire,” Scalia wrote.
Scalia said the Ten Commandments display is similar to one the court allowed to be displayed on the grounds of the Texas Capitol. “The city can safely exhale,” he wrote.
Justice David H. Souter, on the other hand, noted that Alito had found the monument was government speech not subject to scrutiny under the free speech clause. Under that analysis, cities should “avoid the appearance of flat-out establishment of religion” by accepting more than one religious monument, he said. “There will be safety in numbers.”
