B RUCE CALL, Mayor and former City Council Member, JIM 1

DANKLEF, former Mayor, MIKE DANIELS, former Mayor, LEE JENSEN,

City Council Member, CINDY BOYD, City Council Member, JEFF

WILSON, City Council Member, VAL DANKLEF, City Council Member,

KIMBERLY ROBINSON, City Council Member, G.KEITH CORRY, former

City Council Member, MARK ATWOOD, former City Council

Member, SCOTTDARRINGTON, City Administrator, and FRANKMILLS,

former City Administrator, Appellees.

This opinion is subject to revision before final

publication in the Pacific Reporter

2015 UT 31

IN THE

SUPREME COURT OF THE STATE OF UTAH

SUMMUM, a Corporation Sole and Church,

Appellant,

v.

PLEASANT GROVE CITY, a municipal corporation,1

Appellees.

No. 20120717

Filed January 30, 2015

Fourth District, Provo Dep’t

The Honorable Fred D. Howard

No. 110401502

Attorneys:

Brian M. Barnard, Stewart Gollan, Provo, for appellant

Edward L. White III, Francis J. Manion, Geoffrey Surtees,

Erik M. Zimmerman, Ann Arbor, Michigan,

Gregory N. Hoole, Salt Lake City, for appellees

JUSTICE DURHAM authored the opinion of the Court, in which

ASSOCIATE CHIEF JUSTICE NEHRING and JUSTICE PARRISH joined.

JUSTICE LEE filed an opinion concurring in part and in the

judgment, in which CHIEF JUSTICE DURRANT joined.

JUSTICE DURHAM, opinion of the Court:

INTRODUCTION

¶1 We are asked to decide whether the religious liberty clause

of the Utah Constitution requires a city to install a proposed

religious monument in a public park where a Ten Commandments

monument is already situated. We hold that it does not. Because we

have not been asked to do so, we do not decide whether the Ten
SUMMUM v. PLEASANT GROVE CITY

Opinion of the Court

2

Commandments monument at issue in this case is a prohibited use

of public money or property for “religious worship, exercise or

instruction” under article I, section 4 of the Utah Constitution.

Instead, we conclude that the remedy the plaintiff seeks—the

installation of a second monument—is unavailable as a matter of

constitutional law.

BACKGROUND

¶2 Since 1971, a monument displaying a representation of the

Ten Commandments tablets, including the full text, has stood in

Pioneer Park, a city park owned and maintained by Pleasant Grove

City. The Ten Commandments monument was donated to Pleasant

Grove by a local chapter of the Fraternal Order of Eagles. The park

also contains several structures and monuments that Pleasant Grove

has collected or accepted from various private donors over the years,

including pioneer era buildings, a September 11th memorial, and a

rose garden.

¶3 Summum, is a corporation sole and church. Established in

Salt Lake City in 1975, the religion, according to its tenets, is founded

on teachings that predate the ancient Egyptians. These teachings are

summarized in the Seven Aphorisms, which Summum adherents

believe to be complementary to the Ten Commandments. In 2003,

the President of Summum offered to donate and erect a Seven

Aphorisms monument in Pioneer Park that would be similar in size

and nature to the existing Ten Commandments monument.

¶4 Pleasant Grove declined Summum’s offer, explaining that

it had an established practice of accepting only monuments that

were either (1) directly related to the history of the city or

(2) donated by groups with long-standing ties to the city. About nine

months later, the city passed a resolution codifying the criteria to be

considered when deciding whether to place a privately donated

monument on public property:

1. The item must directly relate to the history of

Pleasant Grove and have historical relevance to the

community. . . . 2. It is being donated by an

established Pleasant Grove civic organization with

strong ties to the community; or, 3. The donors

have a historical connection with Pleasant Grove

City; and 4. Placement does not create any safety

hazards; and 5. It is not obscene.

¶5 Summum sued Pleasant Grove in federal court, alleging that

the city’s decision not to accept the proposed Seven Aphorisms
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Opinion of the Court

3

monument violated the Free Speech and Establishment clauses of the

federal Constitution. In Pleasant Grove City, Utah v. Summum, 555

U.S. 460, 481 (2009), the United States Supreme Court rejected

Summum’s free speech claim, holding that the placement of a

monument on public property was a form of government speech

that is not regulated by the Free Speech Clause. Subsequently, the

federal district court rejected Summum’s federal Establishment

Clause claim. Summum v. Pleasant Grove City, No. 2:05CV638 DAK,

2010 WL 2330336, at *3 (D. Utah June 3, 2010).

¶6 Summum then filed a complaint in state court, alleging that

Pleasant Grove had violated the religious liberty clause of the Utah

Constitution. The complaint sought an injunction requiring Pleasant

Grove to erect and permanently display the proposed Seven

Aphorisms monument. Both Summum and Pleasant Grove moved

for summary judgment on Summum’s complaint. The district court

concluded that Pleasant Grove’s decision not to install the

monument did not violate the Utah Constitution and granted

summary judgment in favor of the city. Summum appealed. We

review thedistrict court’s interpretation of the Utah Constitution for

correctness. Snyder v. Murray City Corp., 2003 UT 13, ¶ 17, 73 P.3d

325.

ANALYSIS

I

¶7 Article I, section 4 of the Utah Constitution, Utah’s religious

liberty clause, contains provisions that both protect the free exercise

of religion and prohibit the government from promoting religion.

See Soc’y of Separationists, Inc. v. Whitehead, 870 P.2d 916, 935 (Utah

1993). Summum relies on the provision of the religious liberty clause

prohibiting financial support of religion: “No public money or

property shall be appropriated for or applied to any religious

worship, exercise or instruction . . . .” UTAH CONST. art. I, § 4.

¶8 We interpreted this provision in the context of prayers

offered by private individuals at the commencement of city council

meetings and developed a two-step analysis to determine the

constitutionality of this practice. First, we addressed whether prayer

offered in a public meeting of a government body constituted

“religious worship, exercise or instruction.” Soc’y of Separationists,

870 P.2d at 930; see also Snyder v. Murray City Corp., 2003 UT 13, ¶ 21,

73 P.3d 325. Having concluded that the prayerful address of a deity

is a religious exercise, we then examined whether arranging for and

permitting prayer at a city council meeting amounted to an

unconstitutional appropriation of public money or property to this
SUMMUM v. PLEASANT GROVE CITY

Opinion of the Court

 We note that Pleasant Grove argues that the Ten

2

Commandments monument, viewed in the context of the other

historical displays within Pioneer Park, does not convey a religious

message, but rather a historical message about the importance of this

biblical scripture to Pleasant Grove’s founding citizens. See Thomas

v. Daughters of Utah Pioneers, 197 P.2d 477, 488–90 (Utah 1948) (the

impartial display of artifacts from Mormon pioneers in a statefunded museum did not violate Utah’s religious liberty clause)

4

religious exercise. Soc’y of Separationists, 870 P.2d at 932. Under this

second step, we adopted a neutrality test, reasoning that when the

government provides money or property in an impartial manner,

“any benefit flowing to religious worship, exercise, or instruction

can be fairly characterized as indirect because the benefit flows to all

those who are beneficiaries of the use of government money or

property, which may include, but is not limited to, those engaged in

religious worship, exercise, or instruction.” Id. at 937. The provision

of money or property to religious exercise is indirect, and therefore

constitutional, if (1) “the money or property [is] provided on a

nondiscriminatory basis” and (2) “the public money or property [is]

equally accessible to all.” Id. at 938; accord Snyder, 2003 UT 13, ¶ 20.

¶9 Citing this two-step test from Society of Separationists and

Snyder, Summum argues that Pleasant Grove’s acceptance of the Ten

Commandments monument, but subsequent rejection of a Seven

Aphorisms monument, violated the constitutional prohibition

against the appropriation of public money for religious exercise.

Under the first step, Summum asserts that the display of the Ten

Commandments monument in a public park constitutes “religious

worship, exercise or instruction.” Summum then argues that under

the second step the allocation of public property for the monument

was not neutral because Pleasant Grove subsequently rejected its

offer to display its own religious monument. Notably, Summum

does not seek the removal of the Ten Commandments monument

because of this alleged constitutional violation. Instead, Summum

requests an injunction requiring Pleasant Grove to display its own

proposed monument.

¶10 We do not address Summum’s first contention that the Ten

Commandments monument amounts to “religious worship, exercise

or instruction.” Instead we affirm the district court’s grant of 2

summary judgment in favor of Pleasant Grove on the ground that,

regardless of whether the Ten Commandments monument

constitutes religious worship, exercise, or instruction, the religious

liberty clause of the Utah Constitution does not require a court to
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Opinion of the Court

5

force Pleasant Grove to permanently display a similar Seven

Aphorisms monument. We come to this conclusion for two reasons.

¶11 First, an injunction requiring Pleasant Grove to display the

Seven Aphorisms monument would not satisfy the neutrality

requirement articulated in Society of Separationists and Snyder.

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. See

Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 479 (2009) (“A

public park, over the years, can provide a soapbox for a very large

number of orators—often, for all who want to speak—but it is hard

to imagine how a public park could be opened up for the installation

of permanent monuments by every person or group wishing to

engage in that form of expression.”). Indeed, ordering Pleasant

Grove to allocate public property towards a monument Summum

concedes to be religious in nature would directly contradict the

prohibition contained in article I, section 4.

¶12 Second, we hold that the neutrality test we adopted in the

context of prayers offered during government meetings does not

apply to public monuments. Because the allocation of public money

or property to a permanent religious monument is per se not

neutral, the appropriate remedy for a monument constituting

“religious worship, exercise or instruction” would not be the forced

installation of a second monument.

¶13 The reasoning behind the adoption of the neutrality test in

Society of Separationists demonstrates why this test does not apply to

monuments. In that case, we held that prayers offered during city

council meetings utilized public property because the process of

permitting individuals to offer them used “city facilities, equipment,

resources, and employee time.” Soc’y of Separationists, 870 P.2d at

932. We reasoned, however, that if the Utah Constitution required

an absolute bar of religious expression by private individuals on

public property,
SUMMUM v. PLEASANT GROVE CITY

Opinion of the Court

6

it would mean that while the government could allow

a political group to use a public park for a rally, it could

not allow a religious group to use the park for a revival.

Similarly, if an open microphone and soapbox were set

up outside city hall for the use of any individual who

wished to speak, the government could not permit its

use by those who wanted to pray, conduct an

impromptu religious service, or proselytize others, but

could permit neo-Nazis, the Ku Klux Klan, the John

Birch Society, the Society of Separationists, or members

of the Democratic or Republican Party to speak.

Id. at 934. We rejected such an absolutist interpretation because it

“would evidence an affirmative hostility toward religion,” which

would contradict other provisions of the federal and Utah

Constitutions that protect religious expression and free speech. Id.

at 934–35. Instead, we adopted a neutrality test that permitted the

use of public property in support of private religious expression so

long as government benefits are “provided on a nondiscriminatory

basis” and are “equally accessible to all.” Id. at 938.

¶14 Thus we adopted the neutrality test in the specific context

of transient religious expression by private individuals on public

property. In the examples we cited in Society of Separationists, the

public property at issue—public buildings and equipment, such as

a microphone and sound system—was itself neutral. So long as

access to these public resources is provided in an impartial manner,

private use of public property to express religious sentiments does

not violate the religious liberty clause of the Utah Constitution. If,

for example, Pioneer Park had a pavilion available for group

reservations, Pleasant Grove could allow a Christian church group

to use the pavilion for an ice cream social where prayers would be

offered and religious sentiments expressed, so long as the city also

allowed equal access to the pavilion for an atheist barbeque or a

Buddhist potluck dinner.

¶15 The Ten Commandments monument in this case, however,

is fundamentally different from a park pavilion; it is not a neutral

conduit for private expression. Instead, the monument is itself

government speech. Pleasant Grove, 555 U.S. at 470. When Pleasant

Grove accepted the donated monument, it adopted the message

conveyed by the monument as its own. Id. at 470–72. Because the

government property at issue in this case is itself the message, it

cannot be allocated in an impartial manner since monuments
Cite as: 2015 UT 31

Opinion of the Court

One could imagine, of course, a monument designed to permit 3

citizens to post temporary messages for public consumption. See

Pleasant Grove, 555 U.S. at 480. In that theoretical situation, the

neutrality test might apply.

7

“monopolize the use of the land on which they stand and interfere

permanently with other uses of public space.” Id. at 479. 3

¶16 Therefore the second step of the analysis we applied in

Society of Separationists and Snyder—the neutrality test—has no

application in the context of government monuments. The only

relevant question under article I, section 4’s prohibition against the

use of public money or property for religious purposes is whether

a monument constitutes “religious worship, exercise or instruction.”

We do not reach that question, however, because Summum seeks a

remedy that we may not constitutionally grant.

¶17 In this case, Summum attempts to use the neutrality test as

a tool to facilitate the placement of its own proposed monument in

Pioneer Park. It argues that the district court should order the

installation of a Seven Aphorisms monument in order to establish an

impartial allocation of public property towards religious expression

in the park. But because the neutrality test does not apply in the

context of public monuments, this tool is unavailable to Summum.

We therefore affirm the summary judgment below.

II

¶18 This opinion does not foreclose the possibility of adopting

a context-dependant approach to determine whether a public

monument constitutes an impermissible use of public property for

“religious worship, exercise or instruction” under the first step of the

Society of Separationists test. The U.S. Supreme Court has employed

such a context-driven approach when determining whether the

Establishment Clause of the federal Constitution prohibits

government holiday displays and monuments that constitute

“government endorsement of religion.” Cnty. of Allegheny v. ACLU

Greater Pittsburgh Chapter, 492 U.S. 573, 601 (1989). In applying this

endorsement test, the Court has examined the context of a particular

holiday display or public monument to determine the message

conveyed by the display or monument in question. McCreary Cnty.,

Ky. v. ACLU of Ky., 545 U.S. 844, 867–68, 874 (2005) (constitutionality

of a Ten Commandments monument depends upon the context in

which the monument is displayed); Cnty. of Allegheny, 492 U.S. at 595

(opinion of Blackmun, J.) (“[T]he question is what viewers may fairly

understand to be the purpose of the display. That inquiry, of

necessity, turns upon the context in which the contested object
SUMMUM v. PLEASANT GROVE CITY

JUSTICE LEE, concurring in part and in the judgment

8

appears . . . .” (citation omitted) (internal quotation marks omitted)).

In other words, the Supreme Court has looked to context to

determine whether the message conveyed is a permissible secular

communication or a prohibited endorsement of religion. Compare

Cnty. of Allegheny, 492 U.S. at 598 (“[T]he effect of a crèche display

turns on its setting. Here, . . . nothing in the context of the display

detracts from the crèche’s religious message.”), with id. at 620–21

(opinion of Blackmun, J.) (the use of a menorah as part of a larger

holiday display did “not have an effect of endorsing religious

faith”).

¶19 The text and history of Utah’s religious liberty clause differs

significantly from that of the Endorsement Clause, and we have

charted our own course in interpreting this clause of the Utah

Constitution. See Soc’y of Separationists, Inc. v. Whitehead, 870 P.2d

916, 940 (Utah 1993). But that does not mean that the context in

which a particular monument is displayed does not play a similar

role in determining whether the monument conveys an

impermissible message. Indeed, this court has implied that context

is an important consideration when it held that the impartial display

of artifacts from Mormon pioneers in a state-funded museum did

not violate the Utah Constitution’s religious liberty clause. Thomas

v.Daughters of Utah Pioneers, 197 P.2d 477, 488–90 (Utah 1948); see also

Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (O’Connor, J., concurring)

(“[A] typical museum setting, though not neutralizing the religious

content of a religious painting, negates any message of endorsement

of that content.”).

¶20 Any examination of the context of a public monument to

determine what the public would understand the message conveyed

by the monument to be, however, would be undertaken under the

first step of the Society of Separationists test. This first step inquires

whether a challenged monument or practice “constitutes religious

worship, exercise or instruction.” Soc’y of Separationists, 870 P.2d at

930 (internal quotation marks omitted). We need not, and do not,

engage in such an analysis in relation to the Ten Commandments

monument situated in Pioneer Park in this case. Supra ¶ 10. Thus,

our holding that the second step of the Society of Separationists test

does not apply to monuments has no bearing on the question of how

courts should determine what the message conveyed by a

challenged monument is.

JUSTICE LEE, concurring in part and concurring in the judgment:

¶21 I concur in paragraphs 1 through 11 of the majority

opinion, and also in the judgment affirming the district court’s
Cite as: 2015 UT 31

JUSTICE LEE, concurring in part and in the judgment

9

summary dismissal of the complaint in this case. I write separately,

however, because I disagree with the analysis in the balance of the

court’s opinion, which strikes me as internally inconsistent and

potentially confusing.

¶22 Summum asserts a right under article I, section 4 of the

Utah Constitution to have its “Seven Aphorisms” monument

displayed in Pleasant Grove City’s Pioneer Park. Because that park

already includes a Ten Commandments monument that Summum

views as an item of “religious worship, exercise or instruction”

under article I, section 4, Summum asserts a right to add its own

parallel item to the City’s monuments in Pioneer Park. And in

support of this claim Summum invokes the neutrality test set forth

in Society of Separationists, Inc. v. Whitehead, 870 P.2d 916 (Utah 1993).

¶23 I agree with the majority that this claim fails on the

threshold ground that “an injunction requiring Pleasant Grove to

display the Seven Aphorisms monument would not satisfy the

neutrality requirement articulated in Society of Separationists,” in that

“a second religious monument would not render the allocation of

public property and money to the two monuments neutral.” Supra

¶ 11. Given that “[t]he 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,” there is no basis for concluding that a mere

two monuments (Ten Commandments and Seven Aphorisms)

would render “neutral” the government’s use of public money or

property. Supra ¶ 11.

¶24 That is all we need to say to decide this case. We need not,

and in my view we should not, proffer a view on the “second”

ground articulated by the majority for its holding—that “the

neutrality test we adopted in the context of prayers offered during

governmental meetings” could never be applied in a manner

upholding religiously oriented “public monuments.” Supra ¶ 12. The

applicability of the Society of Separationists neutrality test is not one

we need to reach because Summum’s claim fails on the threshold

ground that it has sought a remedy that is unavailable to it. And the

majority’s analysis on this point is internally inconsistent and

potentially confusing.

¶25 The internal inconsistency is in (a) the opinion’s assertion

(in Part I) that the Society of Separationists’ neutrality test “does not

apply to public monuments,” supra ¶ 12; and (b) the concession (in

Part II) that a religious monument could be upheld if in context it

would not be perceived as “religious worship, exercise, or
SUMMUM v. PLEASANT GROVE CITY

JUSTICE LEE, concurring in part and in the judgment

See McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 867–68, 874 1

(2005) (concluding that constitutionality of Ten Commandments

monument depends on context in which it is displayed); Thomas v.

Daughters of Utah Pioneers, 197 P.2d 477, 488–90 (Utah 1948) (holding

that constitutionality of display of Mormon pioneer artifacts in statefunded museum would depend on context).

10

instruction,” supra ¶¶ 18–21. I agree with the latter concession, as

there is good reason to expect that a monument could satisfy

constitutional scrutiny under Society of Separationists if it were placed

in a neutral setting alongside a wide array of other monuments. But 1

the court’s ultimate concession in Part II undercuts the earlier

conclusion in Part I.

¶26 That gives rise to the potential for confusion in the court’s

opinion as written. In light of the ultimate concession (in Part II) that

the Society of Separationists test could apply in a manner upholding

the use of government funds on a religious monument, the

majority’s assertions about the inapplicability of the test (in Part I)

could mislead litigants and judges in future cases. If read out of

context and taken at face value, the court’s general statements that

Society of Separationists “does not apply to monuments” have a

significant potential to confuse. See Supra ¶ 12

¶27 The majority’s response to this problem is the assertion

that the discussion in Part I of its opinion concerns only the “second

step” of the Society of Separationists test (whether the government

expenditures in question are “neutral”), and the insistence that the

“holding” that that “step” of the test “does not apply to monuments

has no bearing on the question of how courts should determine what

the message conveyed by a challenged monument is.” Supra ¶ 20.

But that explanation does not solve the problem; it simply highlights

the fact that the court’s proffered “second” basis for its

holding—that the Society of Separationists test “does not apply to

public monuments,” supra ¶ 12—is not in fact a separate ground for

the court’s holding. Step two of the Society of Separationists test has

no independent significance. If a religiously oriented monument

would not qualify as “religious worship, exercise or instruction” as

viewed in its real-world context (step one), then it matters not at all

whether the government expenditures at issue are neutral (step

two).

¶28 For that reason, the majority’s concession that a Ten

Commandments monument could withstand constitutional scrutiny

only underscores the fact that the court is not really proffering a

second basis for our holding in this case. We are not “hold[ing] that
Cite as: 2015 UT 31

JUSTICE LEE, concurring in part and in the judgment

11

the neutrality test we adopted in the context of prayers offered

during government meetings does not apply to public monuments,”

supra ¶ 12, because we are ultimately concluding that such test could

apply. And in light of that, there is no “second” basis for rejecting

Summum’s claim in this case (as of course the fact that the Society of

Separationists test might falter at the second step of the analysis is

irrelevant if the test would be rendered irrelevant at the first step).

¶29 Ultimately, and in any event, the majority’s views on the

inapplicability of the Society of Separationists test to cases involving

Ten Commandments monuments are not logically a basis for

rejecting Summum’s claim in this case. Such views may provide

guidance for lawyers and litigants in future cases, but they do not

establish a ground for rejecting Summum’s claim in this case.

¶30 Society of Separationists establishes an exception to the

general rule. The general rule is that “[n]o public money or property

shall be appropriated for or applied to any religious worship,

exercise or instruction.” UTAH CONST. art. I, § 4. Taken literally and

to its logical extreme, that could be understood to foreclose any use

of public funds that would even incidentally benefit religious

worship. Yet Society of Separationists recognized a limitation on the

literal application of article I, section 4. Soc’y of Separationists, Inc., 870

P.2d at 932–34 (rejecting the “absolutist position” advanced by

Society of Separationists). It held that “article I, section 4 does not

require . . . hostility toward religion,” but instead allows public

money or property to support religious worship or exercise if it is

“provided on a nondiscriminatory basis” and “the public money or

property [is] equally accessible to all.” Id. at 938.

¶31 A conclusion that this neutrality analysis is inapplicable

would not be a basis for dismissing a plaintiff’s claim under article I,

section 4. To the extent the court is signaling its skepticism that the

Society of Separationists test—or even part of it—is inapplicable, that

represents a point in favor of a plaintiff under article I, section 4.

That, ultimately, is what the court appears to be doing—identifying

a point of analysis that may favor a plaintiff like Summum in a

future case. Because that cannot be a second ground for dismissing

Summum’s claim in this case, I concur only in paragraphs 1–11 of

the majority opinion and disagree with the rest.

____________