Yesterday’s unanimous Supreme Court decision, Pleasant Grove City v. Summum, was, strictly speaking, not about religion and yet was all about religion–weaving yet more potential tangles into the tangled web of Establishment Clause jurisprudence. The Summum religious sect does not get to place its principles as a monument in a Pleasant Grove park as a matter of free speech, because there is now such a thing as “government speech” that extends to the Ten Commandments monument in the park but need not extend to Summum’s Seven Aphorisms. Whether the Ten Commandments momument violates the Establishment Clause is a subject for another day–and the Court sees Ten Commandments displays in different ways. Justice Scalia thinks there will be no problem. Justice Souter is not at all sure about that. And Justice Breyer, who represents the fifth vote in these cases, played his cards close to the vest. That there will need to be some clarification in the relationship between Establishment Clause and Government Speech jurisprudence, as Souter notes, seems certain.
For all the sneering and hooting about the state of the Establishment Clause, it does seem to me that Souter’s “reasonable observer” test makes a lot of sense. Here’s how he puts it in his Pleasant Grove concurrence:
To avoid relying on a per se rule to say when speech is governmental, the best approach that occurs to me is to ask whether a reasonable and fully informed observer would understand the expression to be government speech, as distinct from private speech the government chooses to oblige by allowing the monument to be placed on public land. This reasonable observer test for governmental character is of a piece with the one for spotting forbidden governmental endorsement of religion in the Establishment Clauses cases….The adoption of it would thus serve coherence within Establishment Clause law, and it would make sense of our common understanding that some monuments on public land display religious symbolism that clearly does not express a government’s chosen views.
In other words, if it looks like the government is saying, “Pleasant City wants you to pay attention to the Ten Commandments, the foundation of our civic life,” then it’s a violation of the Establishment Clause. But if the message is, “Here’s one of a number of guides to living that our citizens care about,” then OK.
The real bone of contention is that current advocates of Ten Commandments displays want the government to communicate the former message, and traditional separationists, the latter. At issue is government endorsement of religion, and don’t let anyone tell you otherwise.