religious liberty

Utah's Powerful Establishment Clause

The Utah Supreme Court decided an interesting case earlier this month about religious expression under the Utah Constitution. The full story behind Summum v. Pleasant Grove City, 2015 UT 31, actually starts with Cecil B. DeMille’s epic film The Ten Commandments. To promote the 1956 film, DeMille teamed up the Fraternal Order of the Eagles and coordinated the placement of Ten Commandments monuments in public parks across America. Years after the film promotion was done, the Eagles continued to give out Ten Commandments monuments as a way to combat juvenile delinquency. See 129 S.Ct. 1125, 1140 (2009). It makes sense because nothing keeps the kids off drugs like a monument.

In 1971, the local chapter of the Eagles donated a Ten Commandments monument to Pleasant Grove City. ¶ 2. Four years later, a new religion, Summum, was born in Utah—and by “born” I mean incorporated as a 501(c)(3) tax-exempt organization. Summum thinks that the Ten Commandments are a “useful guide,” but that their Seven Aphorisms are the real deal. So they wanted to put a Seven Aphorisms monument next to the Ten Commandments monument in Pleasant Grove. Pleasant Grove said no way. They went back and forth for a while and eventually went to court. The case made its way to the U.S. Supreme Court in 2009. In Pleasant Grove v. Summum, 129 S.Ct. 1125 (2009), Summum argued that because Pleasant Grove had accepted the Ten Commandments monument and rejected theirs, Pleasant Grove had restricted their free speech in violation of the federal constitution. The U.S. Supreme Court found that Pleasant Grove had not violated Summum’s right to free speech because the Ten Commandments monument was government speech, not a public forum. 1138. The U.S. Supreme Court didn’t decide whether the Ten Commandments monument itself violated the federal establishment clause, but Justices Scalia and Thomas argued in their concurrence that it did not. 1139-1140.

But Summum wasn’t done. They decided to make another effort at getting the Seven Aphorisms in the Pleasant Grove park. (It’s funny that Pleasant Grove, population 35,000, has become the focus of this religious expression debate. I guess if you can make it in Pleasant Grove, you can make it anywhere.) Summum brought a state claim under the Utah Constitution. Utah’s establishment clause is much more specific than the federal establishment clause. It reads, in part: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or for the support of any ecclesiastical establishment.” Utah Const. art. 1, sec. 4.

The Utah Supreme Court declined to decide whether the Ten Commandments monument violated the Utah Constitution. ¶ 1. Instead, it focused on Summum’s request for adding a Seven Aphorisms monument. The Utah Supreme Court held:

"Assuming that the Ten Commandments monument amounts to religious exercise or instruction, requiring Pleasant Grove to erect a second religious monument would not render the allocation of public property and money to the two monuments neutral. The citizens of Pleasant Grove, and Utah in general, undoubtedly espouse a broad variety of religious views, including adherence to one of multiple religious denominations, agnosticism, or atheism. Displaying monuments that communicate the beliefs of only two of these viewpoints would not amount to an impartial distribution of public property among the spectrum of religious views held by Utah citizens. And because there is a finite amount of space in Pioneer Park, allowing all interested groups to install their own religious or antireligious monuments in the park would be unworkable." ¶ 11.

So if two monuments would fail to neutrally reflect the pluralism of Pleasant Grove and therefore violate the Utah Constitution, then wouldn’t one monument be even worse? The question that the Utah Supreme Court left intentionally unanswered is, does Utah’s establishment clause go further than the federal establishment clause in prohibiting religious monuments in public parks? It looks like it does. Pleasant Grove’s Ten Commandments monument might violate the Utah Constitution even though it might not violate the U.S. Constitution. It's an interesting question, but one that the Utah Supreme Court will have to answer on a different day. For now, Summum can’t have its monument in the Pleasant Grove park.