Summum and the Establishment Clause

Abstract:     
This Symposium Essay assesses the compatibility of the U.S. Supreme Court's recent Free Speech Clause-based decision in Pleasant Grove v. Summum with extant Establishment Clause jurisprudence. The Essay first examines why, based on prior state and federal decisions, a free speech challenge to Pleasant Grove's policy of retaining a Ten Commandments monument while excluding the alternative display Summum wished to erect may have seemed more likely to succeed than a religious liberty one. It then posits that the Supreme Court's resulting neglect of the Establishment Clause implications of the case may result in future conflicts between the religion clauses -- and, in particular, the emerging emphasis on equality in religion clause adjudication -- and the position on government speech that the Court staked out in Summum.

Number of Pages in PDF File: 15

Keywords: religion, First Amendment, Ten Commandments, equality

Accepted Paper Series