Monumental Battle

Complex Utah Case Pits Ten Commandments Against Seven Aphorisms At The U.S. Supreme Court

It’s rare for a religion to be better known for its legal activism than for its religious beliefs.

But the Summum faith, though it has few followers, will land a place in American legal history when the U.S. Supreme Court decides Pleasant Grove City v. Summum.

During their upcoming term, the justices will determine whether Pleasant Grove City, Utah, can deny Summum the right to erect its own monument next to a Ten Commandments in a Utah public park.

But beyond this simplified view of the case is a deeper concern: if the court finds Summum does have the free speech right to erect a monument, it could erode church-state separation in a variety of spheres, allowing religious messages to be sent during public meetings and in displays on public land.

Americans United, joined by the American Jewish Committee, the Anti-Defamation League, the Baptist Joint Committee for Religious Liberty and People For the American Way, filed a friend-of-the-court brief that supports neither Pleasant Grove City nor Summum, but instead urges the court to protect the separation of church and state.

Attorneys for Pleasant Grove City, including Religious Right lawyer Jay Sekulow, are fighting this case to preserve what they see as the Ten Commandments’ rightful place on public property. Sekulow, TV preacher Pat Robertson’s attorney and chief counsel for the American Center for Law and Justice, argues that the Commandments monuments are the real targets of Summum’s legal actions.

“In many circumstances,” he says, “cities or other governments likely would order such monuments removed, rather than order acceptance of others.”

What Sekulow fails to see is that Claude Rex Nowell, founder of the Summum religion, never wanted the Commandments monuments to come down. He just hoped his religion’s tenets would be able to receive the same chance to be displayed on public land, said Brian Barnard, an attorney for Summum.

Religious Right organizations who filed amicus briefs believe the U.S. Supreme Court should accept the Commandments monuments as a “category by themselves,” said the Rev. Rob Schenck, president of the National Clergy Council, which filed a joint brief with the Foundation for Moral Law. (Other Religious Right groups weighing in on the case include the Becket Fund for Religious Liberty, Liberty Counsel and the Alliance Defense Fund.)

After filing the joint amicus brief, former Alabama Chief Justice Roy Moore of Foundation for Moral Law expressed intolerance and indignation.

“When the people of Pleasant Grove City, Utah, decided to install a monument of the Ten Commandments in their city park 37 years ago they never expected that an obscure religious cult would come along and demand that its ‘Seven Aphorisms’ be displayed, too,” huffed Moore, who lost a battle over Commandments displays in Alabama. “Neither the U.S. Constitution nor the radical opinions of federal courts give judges a right to act as park managers to install the beliefs of a new age religion foreign to our culture and heritage.”

The purpose of the Religious Right in fighting this case is clearly to discriminate against “foreign” faiths, and though Americans United is not supporting Summum’s argument, it is certainly not for the same reasons put forth by Sekulow and the Religious Right.

To understand Americans United’s stance, we have to go back 15 years to the beginning of this conflict. At that time, the government of Salt Lake City, Utah, denied a request by Summum to display its monument in front of the courthouse, even though a Commandments monument already sat on the court’s lawn.

Nowell, who founded the Summum Church in 1975 (and later changed his name to Summum Bonum Amon Ra), wanted the Seven Aphorisms, which are the faith’s basic principles, to sit alongside the Ten Commandments. (Summum believes Moses received the Seven Aphorisms on tablets before the Ten Commandments, but chose to only share the Commandments with the Israelites.)

When Ra’s request drew a negative response from Salt Lake City, he approached Barnard about his options.

But Barnard faced a constitutional roadblock within the 10th Circuit. Years ago, the appellate court ruled in Anderson v. Salt Lake City that the Ten Commandments are “primarily secular,” so their display on public property could never bring up a federal church-state separation argument since religion supposedly isn’t implicated.

So Barnard drafted a complaint, not arguing separation of church and state, but rather that Summum was denied its free speech rights. The Fraternal Order of Eagles, a private group, had erected the Commandments monument with the permission of the city. When that happened, Summum argued, it opened up the courthouse’s front lawn for other groups and individuals to also “speak” on public land.

In other words, Summum said a public forum had been created that should be open to all types of speech from private groups.

That initial case, Summum v. Callaghan, was appealed to the 10th Circuit. The three-panel judge agreed with Summum: The city had stifled Summum devotees’ free speech rights. As long as the Eagles’ display was permitted, Summum also was allowed to display its own monument.

After this decision, however, the city removed the Commandments monument rather than give Summum’s Aphorisms a place at the courthouse.

This initial case began 15 years of litigation between Summum and various city governments in Utah. When Barnard was first approached by Ra, Utah had nine different Commandments monuments across the state. Barnard has represented Summum in one legal action after another.        

Since Barnard would not be able to succeed with a federal separation of church and state argument because of 10th Circuit law at the time, he only brought federal free speech claims on behalf of Summum. For that reason, the Pleasant Grove case now before the U.S. Supreme Court does not even involve a direct argument about the separation of church and state. Barnard instead contended that by refusing to allow Summum’s monument in the park, the city violated Summum’s free speech.

The trial court and the 10th Circuit both agreed. Applying its initial analysis in Callaghan, both courts said Summum did have a First Amendment free speech right to erect a monument, so long as the Eagles and other private groups were permitted to erect their monuments.

Americans United believes the 10th Circuit was wrong in analyzing this particular Summum case and the others that preceded it under freedom of speech constitutional principles. Instead, AU believes the U.S. Supreme Court should recognize that the trial court and the 10th Circuit should have decided this case only under separation-of-church- and-state principles.

Traditionally, monuments on public land are considered to be government speech – meaning that the government is “speaking” by permitting the Ten Commandments monument on public land. Government speech, unlike private speech, is not protected under free speech laws, and is limited by other constitutional principles.

For example, the government cannot speak on certain matters, namely religious beliefs, while a private person can. That is the reason why religious symbols are not generally permitted on government land but individuals can display those same symbols on their own private land.

If the Supreme Court goes along with the 10th Circuit and Summum’s interpretation of free speech, the government could begin to use private speakers during public meetings to spread religious beliefs.

“That’s the risk of this case,” said Ayesha N. Khan, AU’s legal director. “It could allow the government to evade its obligation to remain religiously neutral.”

It also could mean that if the government allows any group to erect a monument on its land, it must allow all proposed monuments to be erected, with no restrictions, attorneys for Pleasant Grove City pointed out.

For example, under Summum’s in terpretation of free speech, even notorious Pastor Fred Phelps, of the Westboro Baptist Church in Kansas, could erect his anti-gay monument that read, “Matthew Shepard Entered Hell October 12, 1998, in Defiance of God’s Warning” followed by a quote from Leviticus. (Phelps has tried to do that in several states already.)

Barnard said he never intended for the case to erode church-state separation. All he and Ra wanted was to end the discrimination against members of the Summum faith, who felt they deserved as much acknowledgement as believers in the Ten Commandments.

Ra, who died in January at the age of 63, only saw the insincerity of Utah’s government officials, Barnard said.

“These government officials say they are in favor of freedom of religion, but they are only going to let the Eagles put up their thoughts and no other religion,” he said.

If the Supreme Court says that free speech isn’t the correct grounds for Summum’s argument, then Barnard will amend the complaint to argue a vioation of separation of church and state, he said. Had Anderson not been the law in the 10th Circuit at the time he filed the original complaint, he would have brought a separation-of- church-and-state argument at the start.

“But I have faith in our judicial system,” Barnard said. “They will be able to sort it out, either in the Supreme Court or the 10th Circuit.”