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The Clause Less Taken: Pleasant Grove City v. Summum and the Establishment Clause of the Utah Constitution

24 Pages Posted: 5 Mar 2009 Last revised: 13 Aug 2010

Brian M. Lusignan

Vermont Law School; Boston College

Date Written: August 5, 2010


In Pleasant Grove City v. Summum, the Supreme Court unanimously held that a Ten Commandments monument in a small park near the center of Pleasant Grove City, Utah constitutes government speech unbound by the Free Speech Clause of the First Amendment. Therefore, the Court held that Pleasant Grove was not required to accept a monument donated by the religion of Summum. Everyone anticipated Summum’s next move: a motion for an injunction based on the City’s violation of the Establishment Clause. Summum obliged, and in June 2010 the U.S. District Court for the District of Utah dismissed its claim.

This article argues that Summum should focus not on the First Amendment’s ten vague words, but the detailed provisions of Article I § 4 of the Utah Constitution. Part I provides an overview of Pleasant Grove City v. Summum. Part II analyzes Summum’s still-viable claim under the Federal Establishment Clause, pointing out a potentially successful argument that Summum could make but then demonstrating that the Federal Establishment Clause is simply too unpredictable. Part III outlines the history of Utah’s establishment clause, including its importance in the history of Utah and the unique case law governing its interpretation. Part IV analyzes Summum’s claim under the first prong of the test developed for the Utah establishment clause, arguing that the Ten Commandments monument in Pioneer Park constitutes a “religious exercise.” Part V analyzes Summum’s claim under the second prong of the test, arguing that Pleasant Grove City has not acted neutrally towards religion. Finally, the article concludes by reiterating Summum’s higher likelihood of success under Utah’s establishment clause.

Keywords: constitutional law, state constitution, church and state separation, establishment clause, first amendment, free speech, government speech, Utah constitution, Pleasant Grove City v. Summum

Suggested Citation

Lusignan, Brian M., The Clause Less Taken: Pleasant Grove City v. Summum and the Establishment Clause of the Utah Constitution (August 5, 2010). Available at SSRN: or

Brian Lusignan (Contact Author)

Vermont Law School ( email )

68 North Windsor Street
P.O. Box 60
South Royalton, VT 05068
United States

Boston College ( email )

140 Commonwealth Avenue
Chestnut Hill, MA 02467
United States

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