Government Identity Speech and Religion: Establishment Clause Limits After Summum

This Article offers in-depth analysis of the opinions in Pleasant Grove v. Summum. Summum is a significant case because it expands “government speech” to cover broad, thematic government identity messages in the form of donated monuments, including the much-litigated Fraternal Order of Eagles-donated Ten Commandments. The Article explores the fine distinctions between the new “government speech doctrine”— a defense in Free Speech Clause cases that allows government to express its own viewpoint and to reject alternative views—and “government speech” analyzed under the Establishment Clause, which prohibits government from expressing a viewpoint on religion, and from favoring some religions over others. The Court’s decision, to characterize all public monuments as expressing “government-controlled” messages which reflect municipal identity, should impact the Establishment Clause calculus. Using social meaning theory, I show how the Culture Wars have transformed the message of governmental religious displays, and how Summum has eliminated the donor’s ambiguating role, which played a part in Justice Breyer’s Van Orden concurrence. The Article also serves a valuable function by contesting claims that Summum has eliminated the Establishment Clause endorsement test, or that it dangerously allows government to convert any and all private speech to its own, thus deflecting Free Speech claims. My interpretation shows that the decision is multi-faceted and contextual; it relies on government’s expressive intent, an inherently communicative medium, and viewers’ reasonable attributions regarding monument speech. As shown below, the Court’s exposition on the unfettered indeterminacy of monuments’ content either has been misconstrued, or renders the opinion internally inconsistent. I conclude by proposing a compromise solution: it requires a new level of transparency for the history-based rationales used to explain existing public religious displays, and closer scrutiny of any new government religious displays that are initiated in this religiously divisive time. Finally, my proposal is illustrated by application to Ten Commandments monuments and the Salazar v. Buono narrative