### UNITED STATES COURT OF APPEALS Tenth Circuit Byron White United States Courthouse

1823 Stout Street Denver, Colorado 80294 (303) 844-3157 Patrick J. Fisher, Jr. Elisabeth A. Shumaker Clerk Chief Deputy Clerk January 14, 1998

TO: ALL RECIPIENTS OF THE CAPTIONED OPINION
RE: 96-4191, Summum v. Callaghan November 28, 1997
Please be advised of the following correction to th e captioned decision: On page 28, note 18, in the first line of the slip opinion there is a typographical error. The correct spelling of the a uthor’s name of the referenced journal article should be “Spiropoulos,” and not “S piropoulous” as it appeared in the slip opinion. Please make the appropriate correction to your copyof the opinion. Very truly yours, Patrick Fisher, Clerk

Keith Nelson Deputy Clerk

## F I L E D United States Court of Appeals Tenth Circuit 

### NOV 28 1997 

### PATRICK FISHER Clerk 

### PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SUMMUM, a Utah corporate sole, Plaintiff-Appellant,

v. MARY CALLAGHAN; SALT LAKE COUNTY, a municipal government entity; JAMES BRADLEY, Salt Lake County Commissioner; BRENT OVERSON, Salt Lake County Commissioner; RANDY HORIUCHI, Salt Lake County Commissioner, Defendants-Appellees. No. 96-4191

Appeal from the United States District Court

for the District of Utah (D.C. No. 94-CV-906)

Brian M. Barnard (Natasha Hawley and Andrea J. Garl and, with him on the briefs), Utah Legal Clinic, Cooperating Attorneys f or Utah Civil Rights & Liberties Foundation, Inc., Salt Lake City, Utah, f or Plaintiff/Appellant. Patricia J. Marlowe, Deputy County Attorney (Dougla s R. Short, Salt Lake County Attorney and Sirena M. Wissler, Deputy County Attorney, with her on the brief), Salt Lake City, Utah, for Defendants/Appell ees.1 Summum also asserts claims under the Religious Free dom Restoration Act

(“RFRA”). 42 U.S.C. §§ 2000bb et seq. The Supreme Court, however, recently held RFRA unconstitutional. City of Boerne v. Flores , 117 S. Ct. 2157 (1997). Therefore, we do not address these claims. -2- Before SEYMOUR , Chief Judge, MCKAY, Senior Circuit Judge, and HENRY , Circuit Judge.

SEYMOUR , Chief Judge.
This appeal involves two consolidated actions broug ht under 42 U.S.C. § 1983 by Summum, a church, against Salt Lake County and its Commissioners (“the County”) based on the County’s denial of seve ral requests made by Summum to erect a monolith displaying certain relig ious tenets of the Summum church near a Ten Commandments monolith located on the front lawn of the Salt Lake County Courthouse for the Third Judicial Distr ict. Summum alleges violations of the Establishment, Free Exercise, Fre e Speech, and Due Process Clauses of the United States Constitution and analo gous provisions of the Utah Constitution. 1 The district court dismissed Summum’s federal cla ims under Fed. R. Civ. P. 12(b)(6), and dismissed the pendent stat e law claims without prejudice. Summum appeals, and we reverse and remand for furth er proceedings.2 In the early 1970s, residents and taxpayers of SaltLake County sued both

Salt Lake City and Salt Lake County alleging that t he placement of the Ten Commandments monolith on the courthouse lawn violat ed the Establishment Clause and seeking its removal. We rejected plaint iffs’ arguments and held that the monolith did not violate the Establishment Clau se. Anderson v. Salt Lake City Corp. , 475 F.2d 29 (10th Cir. 1973) , rev’g , 348 F. Supp. 1170 (D. Utah 1972). Although we recognized the religious nature of the Ten Commandments, we also noted its “substantial secular attributes” as a pre cedent legal code and concluded that the “monolith is primarily secular, and not re ligious in character; that neither its purpose nor effect tends to establish religious belief.” Id. at 33-34. Since Anderson was decided, however, more recent cases, including a Supreme Court case, casts doubt on the validity of our conclusion that the Ten Commandments (continued...) -3- I. Standing on the front lawn of the Salt Lake County Courthouse on property owned and controlled by the County is a stone monol ith inscribed with, among other things, the Ten Commandments. This Ten Comma ndments monolith is approximately fifty-eight inches high and thirty-tw o inches wide, and is permanently installed in the grass next to the side walk leading to the main entrance of the courthouse. Thus, the monolith is in a prominent place and visible to all who enter the courthouse through the main en trance. The Order of Eagles, a private fraternal order, erected the Ten Commandmen ts monolith in approximately 1971 with the approval of the County. The County s pecifically granted the Order of Eagles permission to install the monolith at a m eeting of the County Commission. The Order of Eagles paid for both the creation and installation of the monolith. 22 (...continued)

monolith is primarily secular in nature. See infra note 8. A more detailed description of the Ten Commandments monolith as well as the events leading to its installation can be found in both the district and appellate court opinions in Anderson . The Ten Commandments monolith is also inscribed with symbols representing the All Seeing Eye of God , the Star of David, the Order of Eagles, letters of the Hebraic alphabet, a nd Christ or peace. Anderson , 475 F.2d at 30. -4- Summum is a church formed in Utah in 1975, and its main offices are located in Salt Lake City. On August 17, 1994, Sum mum mailed a letter to the Salt Lake County Commission requesting that Summum be allowed to place a stone monolith with its own religious tenets on the front lawn of the County courthouse near the Ten Commandments monolith. The proposed monolith would be comparable in size, shape, and design, and Summu m would pay for all costs of creation and installation. Having received no resp onse from the Commission, Summum sent a second letter on August 29. A few days later, Summum received a letter from Commission Chair James Bradley denyin g Summum’s request on the ground that “the county and other government entiti es are in the process of examining that property for development of a new ja il or other facilities and it would not be prudent to engage in any construction or development, of any kind, on that site at this time.” Aplt. App. at 28. At the time the events underlying this appeal took place, Salt Lake County Commissioners Brent Overson, Randy Horiuchi, Mary C allaghan, and James3 Commissioner James Bradley left office in December 1994 and was

replaced by Commissioner Mary Callaghan. Aplt. App . at 255.

4 Summum I

did not allege any causes of action for constituti onal violations of the right to free speech or free expression. Su mmum did, however, allege that the County had created a public forum on the courth ouse lawn, and that by summarily denying Summum’s request without establis hing any standards or appeal process, the County had violated Summum’s du e process rights. -5- Bradley, who are named defendants in this action, w ere vested with the administrative power to determine whether a private organization or individual could install a display on county property. 3 The County does not have any written or unwritten rules, regulations, policies or practi ces governing the placement of permanent displays on county property to guide the Commissioners in making these decisions. Nor has the County established anappeal process to challenge denials of such requests. On September 16, 1994, Summum filed a complaint ( Summum I ) alleging that Salt Lake County and its Commissioners violate d the Establishment, Free Exercise, and Due Process Clauses of the federal an d state constitutions by denying Summum’s requests to place its monolith on the courthouse lawn while allowing the Ten Commandments monolith to stand. S ummum sought monetary compensation and punitive damages, declaratory and injunctive relief as well as attorneys’ fees and costs under 42 U.S.C. § 1983 an d § 1988. 4 The County moved to dismiss Summum I

pursuant to Fed. R. Civ. P. 12(b)(6) for failure t o state a claim.-6-

In an order dated January 5, 1995, the district cou rt granted the County’s motion to dismiss. Relying on our decision in Anderson v. Salt Lake City Corp. , 475 F.2d 29 (10th Cir. 1973), which held that the T en Commandments monolith did not violate the Establishment Clause because itwas primarily secular in nature, the district court dismissed Summum’s Estab lishment Clause claims. The district court further reasoned that since the Ten Commandments monolith was secular, the County had not created a forum for rel igious expression by permitting the Order of Eagles to place their monolith on the courthouse lawn, and thus Summum had no right under the Free Exercise Clause to place its own monolith there. Moreover, since Summum had not been deprive d of any protected interest, the court held that Summum’s due process claims als o failed. After dismissing all Summum’s federal claims, the district court decline d to exercise jurisdiction over the pendent state law claims and dismissed them wit hout prejudice. In the meantime, on December 19, 1994 and January 3 , 1995, Summum made two new requests to the County for permission to erect a monolith displaying tenets of the Summum church on the courthouse lawn. In these requests, Summum specifically indicated that its pu rpose in installing the5 Summum also mailed letters to Salt Lake City making the same request.

Salt Lake City responded in a letter stating that t he County alone is responsible for making decisions as to the erection of displays or monuments on the courthouse lawn.

6 While these motions were pending, the Supreme Courtdecided Capitol Square and Summum brought this decision to the district c ourt’s attention as (continued...) -7- monolith was to exercise its constitutional right t o free speech. Summum received no response from the County to either of t hese letters. 5 On or about January 12, 1995, Summum filed a motionto alter or amend judgment and a motion seeking leave to file an amen ded complaint, which was attached. The amended complaint added causes of ac tion under the Free Speech Clause of the federal and state constitutions. It alleges that the County has created a public forum on the courthouse lawn and h as violated Summum’s state and federal free speech rights by (1) denying Summu m’s requests to install a monolith next to the Ten Commandments monolith; (2) leaving the decision as to who may place a permanent display on county property as well as the content of such displays to the unbridled discretion of the Co mmissioners named as defendants; and (3) seeking to censor Summum’s idea s. Summum supported these motions with supplemental authority provided by the Sixth Circuit’s decision in Pinette v. Capitol Square Review & Advisory Bd. , 30 F.3d 675 (6th Cir. 1994), which was later affirm ed by the Supreme Court, 515 U.S. 753 (1995). 6 According to Summum, Capitol Square held that private6 (...continued)

supplemental authority in further support of the pe nding motions. -8- religious speech was fully protected under the Free Speech and Free Exercise Clauses and that under these constitutional guarant ees, “private speech may not be banned from a secular public forum because . . . th e speech is religious.” Aplt. App. at 203. In light of Capitol Square , Summum argued that the district court erred in dismissing the free exercise claims in Summum I on the ground that a religious forum had not been created on the courthouse lawn because of the secular nature of the Ten Commandments monolith

. Summum contended under Capitol Square that regardless of whether a public forum is chara cterized as religious or secular, when the government denies pr ivate religious speech equal

access to anypublic forum it violates the Free Exercise Clause. Summum also asserted that Capitol Square supported its motion to amend the complaint by showing the strength of Summum’s potential free spe ech claims. Summum requested that the district court reconsider its di smissal of Summum I and proceed with the amended complaint. Subsequently in August 1995, Summum filed a new andseparate complaint against the County ( Summum II) asserting causes of action essentially identical t o the amended complaint. The County moved to dismiss Summum II on the ground of res judicata.-9-

The two actions were consolidated. In an order dat ed June 10, 1996, the district court ruled on Summum’s motion to alter oramend the judgment in
Summum I and the County’s motion to dismiss Summum II. In addressing Summum’s motion to alter or amend, the district cou rt elaborated on and clarified its previous order dismissing Summum I. The court stated that Summum’s reliance on Capitol Square was misplaced because the Supreme Court had “accepted as a predicate matter” that the governmen t property in question was a public forum, while the issue in the instant case w as whether a public forum had in fact been created. Aplt. App. at 230-31. The d istrict court was persuaded the County had not created a public forum simply by all owing one private organization access to the courthouse lawn. Becaus e Capitol Square did not shed light on whether a public forum had been created, a nd because in the district court’s view the courthouse lawn fell “squarely” into the category of a nonpublic forum, id . at 231, the court denied Summum’s motion to alteror amend the judgment in Summum I. The district court dismissed Summum II on the grounds of res judicata , having previously observed that Summum II is “in essence, the proposed amendment to the Summum I complaint.” Id. at 229. The court also observed that Summum’s free speech claim was a clos e companion to its free7 The County argues that since the district court dis missed the free speech

claims in Summum II

under the doctrine of res judicata , our only duty is to review de novo the res judicata determination, and we need not discuss the substan ce of the free speech claims made in Summum II. Summum, on the other hand, contends the district court directly ruled on the m erits of the free speech claims in denying the motion to alter or amend judgment in Summum I and in dismissing Summum II, and therefore these claims are properly before us on appeal. The convoluted procedural posture of this appeal st ems from the district court’s failure to grant Summum leave to amend the complaint in Summum I to include free speech claims. Summum made two attemp ts to amend the complaint before filing Summum II. The court denied Summum’s first motion to amend in its order dismissing Summum I on the ground that it was submitted without supporting authorities in violation of a local dist rict court rule. Summum once again tried to amend the complaint to add free spee ch claims under new Supreme Court authority, but the court never explicitly rul ed on the second motion. After waiting over seven months for the court to render adecision, Summum filed Summum II

and a notice of withdrawal of its motion to amend the complaint in Summum I

as moot. Considering the liberal pleading standar ds under the federal rules, Summum should have been allowed to amend its complaint in Summum I, thereby avoiding altogether the res judicata problem presently before this court. See 5A C HARLES A LAN W RIGHT & A RTHUR R. M ILLER , F EDERAL P RACTICE AND P ROCEDURE § 1357, at 360-67 (2d ed. 1990) (observing that di smissal under 12(b)(6) is generally not final and court will ordi narily give plaintiff leave to file an amended complaint). In any event, the district court directly considere d the free speech issues raised in the amended complaint. The court recogni zed that Summum II was in essence the amended complaint; that the free speech claim was closely related to the free exercise claim; that it had already held n o public forum had been created in deciding Summum’s free exercise claim, and there fore Summum’s free speech claim also failed as a matter of law. In light of the district court’s actions, we will treat the amended complaint in Summum I as if it were before the district court and before us as well. In sum, while we agree with the County that Summum II was properly dismissed on res judicata grounds, we also hold Summum’s free speech claims (continued...) -10- exercise claim and, as a matter of law, fell within the court’s conclusion that the County courthouse lawn was not a public forum. 77 (...continued)

are properly before us in the form of the amended c omplaint.

8 Summum urges us to overrule our decision in Anderson v. Salt Lake City Corp. , 475 F.2d 29 (10th Cir. 1973), and hold that the C ounty has violated the Establishment Clause by denying Summum’s requests w hile allowing the Ten Commandments monolith to stand. We are not at libe rty to overrule or disregard the precedent of an earlier panel absent en banc re consideration or a superseding contrary decision of the United States Supreme Court. LeFever v. Commissioner of Internal Revenue , 100 F.3d 778, 787 (10th Cir. 1996). Because we b elieve that Summum has stated a cause of action under the Free Speech Clause of the federal constitution, and reverse and remand on these groun ds, we need not reach Summum’s Establishment Clause claims here. We note , however, that our decision in Anderson has been called into question by the Supreme Courtin Stone v. Graham, 449 U.S. 39 (1980) (per curiam) (holding statute re quiring posting of Ten Commandments in public school classrooms violat es Establishment Clause). In Stone , the Court observed:

The Ten Commandments are undeniably a sacred text i n the Jewish and Christian faiths, and no legislative recitation of a supposed secular purpose can blind us to that fact. The Commandments do not confine themselves to arguably secular matters, such as hon oring one’s parents, killing or murder, adultery, stealin g, false witness, and covetousness. . . . Rather, the firstpart of the Commandments concerns the religious duties of believers: worshipping the Lord God alone, avoidin g idolatry, not using the Lord’s name in vain, and observing the Sabbath Day. Id. at 41-42 (footnote and citation omitted).

-11- II. We turn first to Summum’s free speech claims, and m ore specifically, to whether Summum has stated a cause of action under t he Free Speech Clause. 8
This court reviews de novo a district court’s dismissal of a complaint pursuant to9 Because our review is confined to allegations made in the amended

complaint, see Klein v. Zavaras, 80 F.3d 432, 434 (10th Cir. 1996), we deny Summum’s motion for leave to file a video tape as p art of the record on appeal.

10 Cases concerning private religious speech on govern ment property are usually resolved under the Free Speech Clause and g enerally invoke the Free Exercise Clause simply to note that private religio us speech is protected under (continued...) -12- Fed. R. Civ. P. 12(b)(6). Grossman v. Novell, Inc. , 120 F.3d 1112, 1118 (10th Cir. 1997). We “‘must accept all the well-pleaded allegations of the complaint as true and must construe them in the light most favor able to the plaintiff.’” Id

. (quoting Roman v. Cessna Aircraft Co. , 55 F.3d 542, 543 (10th Cir. 1995)). We will uphold a Rule 12(b)(6) dismissal “‘only when i t appears that the plaintiff can prove no set of facts in support of the claims thatwould entitle him to relief.’” Yoder v. Honeywell Inc. , 104 F.3d 1215, 1224 (10th Cir. 1997) (quoting Fuller v.
Norton , 86 F.3d 1016, 1020 (10th Cir. 1996)), cert. denied, 118 S. Ct. 55 (1997). Finally, we keep in mind that “granting such a moti on to dismiss is a ‘harsh remedy which must be cautiously studied, not only t o effectuate the spirit of the liberal rules of pleading but also to protect the i nterests of justice.’” Ramirez v. Oklahoma Dep’t of Mental Health , 41 F.3d 584, 586-87 (10th Cir. 1994) (quoting Morgan v. City of Rawlins , 792 F.2d 975, 978 (10th Cir. 1986)). 9 We begin by noting the “‘crucial difference between governmentspeech endorsing religion, which the Establishment Clause forbids, and private speech endorsing religion, which the Free Speech and Free Exercise Clauses protect.’” 1010 (...continued)

both the Free Speech and Free Exercise Clauses of t he First Amendment. See Widmar v. Vincent , 454 U.S. 263, 273 n.13 (1981). Since Summum’s cl aims implicate free speech rights, and “it is on the bas es of [these] rights that we decide the case,” “we need not inquire into the ext ent, if any, to which free exercise interests are infringed” by the County’s d enial. Id. -13- Capitol Square Review & Advisory Bd. v. Pinette , 515 U.S. 753, 765 (1995) (quoting Board of Educ. of Westside Community Sch. v. Mergen s , 496 U.S. 226, 250 (1990)). In Cornelius v. NAACP Legal Defense & Educ. Fund, 473 U.S. 788 (1985), the Supreme Court set out a three-step fram ework for analyzing the constitutional protections afforded to private spee ch on government property. First, we must determine whether Summum’s proposed monolith is protected speech, for if it is not protected the analysis end s here. Second, we must analyze whether the courthouse lawn is a public or nonpubli c forum because the extent to which the County may limit access to this property-

- i.e. , whether a heightened or reasonableness standard applies--depends on its cat egorization. Finally, we must assess whether the County’s justifications for excl uding Summum from the courthouse lawn satisfy the requisite standard. Id . at 797.

A. Protected Speech The first step is easily disposed of when, as here, the speech in question is private religious speech. The Supreme Court has un equivocally stated that11 A traditional public forum consists of places such as “streets and parks,

which have immemorially been held in trust for the use of the public, and, time out of mind, have been used for purposes of assembl y, communicating thoughts between citizens, and discussing public questions.” Perry Educ. Ass’n , 460 U.S. at 45 (internal quotations omitted). In a traditio nal public forum, content-based regulations are subject to heightened scrutiny, i.e. , the government must show that the regulation is “necessary to serve a compelling state interest and that it is narrowly drawn to achieve that end.” Id. Content-neutral regulations must be “narrowly tailored to serve a significant governmen t interest, and leave open ample alternative channels of communication.” Id. -14- “private religious speech, far from being a First A mendment orphan, is as fully protected under the Free Speech Clause as secular p rivate expression.” Capitol Square , 515 U.S. at 760.

B. Nature of Forum Turning to the second step, the Supreme Court has r ecognized three distinct categories of government property: (1) traditional public fora; (2) designated public fora; and (3) nonpublic fora. Perry Educ. Ass’n v. Perry Local Educators’
Ass’n , 460 U.S. 37, 45-46 (1983). Summum does not argue that the courthouse lawn is a traditional public forum. 11 Aplt. Reply Br. at 11. Summum instead contends that the courthouse lawn is a “limited pub lic forum.” Id. at 11-12. As we discuss more fully below, there is some confusio n over this term in the case law. It is not clear whether Summum uses “limited public forum” to refer to a designated public forum that is subject to heighten ed scrutiny, or to a nonpublic-15-

forum that is subject to a reasonableness standard. Summum’s (and the district court’s) confusion is readily understandable in lig ht of the inconsistent manner in which the Supreme Court itself has used this term. We must therefore clarify precisely how Summum defines “limited public forum” in order to assess the sufficiency of its amended complaint. 1. Designated Public Forum A designated public forum is property the government has opened for expressive activity, treating the property as if itwere a traditional public forum. A designated public forum may be created for a “lim ited purpose” for use “by certain speakers, or for the discussion of certain subjects.” Perry Educ. Ass’n , 460 U.S. at 45-46 & n.7 (citations omitted); see also Cornelius , 473 U.S. at 802. For example, “[u]niversity facilities opened for me etings of registered student organizations qualify as a designated public forum. ” Church on the Rock v. City of Albuquerque , 84 F.3d 1273, 1278 (10th Cir.) (citing Widmar v. Vincent , 454 U.S. 263, 267-68 (1981)), cert. denied, 117 S. Ct. 360 (1996). Unlike a traditional public forum, the government “ is not required to indefinitely retain the open character” of a design ated public forum. Perry Educ.
Ass’n , 460 U.S. at 46. However, as long as the propertyis designated as a public forum, the government is “bound by the same standar ds as apply in a traditional public forum.” Id. Thus, content-based regulations must be narrowly drawn to12 See part B2, infra

. -16-

effectuate a compelling state interest and reasonab le time, place, and manner regulations are permissible. Id. Sometimes included within this category of designat ed public forum is property referred to as a “limited public forum.” In Widmar v. Vincent , 454 U.S. 263 (1981), for example, the Supreme Court held that a state university had created a “limited public forum,” id . at 272, by making its facilities generally available for the activities of registered student groups, and applied the strict scrutiny test to the university’s decision to exclu de a religious student group from using its facilities, id . at 269-70. Thus, in Widmar , the term “limited public forum” was used specifically to denote a particularsub-category of the designated public forum--a designated public forum for a limit ed purpose for use by certain speakers, i.e. , registered student groups. In more recent cases, however, the Court has used t he term “limited public forum” to describe a type of nonpublic forum and ha s applied a reasonableness standard under which the state may restrict speech “so long as the distinctions drawn are reasonable in light of the purpose servedby the forum and are viewpoint neutral.” 12 Cornelius , 473 U.S. at 806. For example, in Rosenberger v. Rector & Visitors of the Univ. of Va. , 515 U.S. 819 (1995), the Court, as in Widmar , held a state university had created a “limited pu blic forum,” id . at 829,13 The purpose element requires “consideration of a fo rum’s special

attributes [which] is relevant to the constitutiona lity of a regulation since the (continued...) -17- by allowing a wide spectrum of registered student g roups access to a student activities fund. In contrast to Widmar , however, the Court applied a reasonableness test to the university’s decision to exclude a Christian student news publication from receiving money from the fund

. Id. at 829-30. Similarly, in Lamb’s Chapel v. Center Moriches Union Free Sch. Dist ., 508 U.S. 384 (1993), the Court accepted the lower courts’ holding that t he school district had created a “limited public forum,” id . at 390, by allowing various private organizations access to school property, and went on to apply a r easonableness standard to the school district’s exclusion of a church from showin g a film on school property, id.
at 393-94. Our review of the record and briefs persuades us th at Summum does not use “limited public forum” to mean property which f alls within the category of a designated public forum. In determining whether th e government has created a designated public forum, courts must examine severa l factors, including (1) the purpose of the forum; (2) the extent of use of the forum; and (3) the government’s intent in creating a designated public forum. See generally1 R ODNEYA.
S MOLLA , S MOLLA AND N IMMER ON F REEDOM OF S PEECH § 8:10-8:14 (3d ed. 1996). 13 Nowhere in the amended complaint does Summum alle ge facts13 (...continued)

significance of the governmental interest must be a ssessed in light of the characteristic nature and function of the particula r forum involved.” Heffron v. International Soc’y for Krishna Consciousness, Inc. , 452 U.S. 640, 650-51 (1981). The extent-of-use requirement is not satisfied mere ly when some speakers are allowed access to government property. See United States v. Kokinda , 497 U.S. 720, 730 (1990) (plurality opinion); Perry Educ. Ass’n , 460 U.S. at 47; Greer v. Spock, 424 U.S. 828, 836 (1976); Brown v. Palmer , 944 F.2d 732, 734 (10th Cir. 1991) (en banc). Something more than “s elective access” or “limited discourse” is required. Cornelius , 473 U.S. at 802, 805. The government must allow “general access” to, id. at 803, or “indiscriminate use” of, Perry Educ. Ass’n , 460 U.S. at 47, the forum in question whether by the general public, certain speakers, or for certain subjects. Finally, the government intent element is satisfie d only when the government “intentionally open[s] a nontraditional forum for public discourse.” Cornelius , 460 U.S. at 802. The Court identified two factor s to help it discern intent: (1) the policy and practice of the governm ent; and (2) the nature of the property and its compatibility with expressive acti vity. Id. Thus, the Court expressed its reluctance to find a designated publi c forum where “the principal function of the property would be disrupted by expr essive activity” or where government policy or practice reveals criteria to s electively limit access. Id. at 803-05. -18- pertaining to the purpose or any special attributes of the courthouse lawn which make it compatible with extensive expressive activi ty; the extent to which the County uses the courthouse lawn as a place for expr essive activity; or the County’s intent to open up the courthouse lawn to e xpressive activity by the general public, certain speakers, or certain topics

. Indeed, as Summum points out, the only facts it all eges to support its assertions that the County’s actions have establish ed a public forum are that the Ten Commandments monolith has stood on the courthou se lawn on property14 We recognize that the boundary between a designated public forum for a

limited purpose ( e.g. , Widmar ) and a limited public forum ( e.g. , Rosenbergerand Lamb’s Chapel) is far from clear. Because we conclude that Summ um is not alleging that a designated public forum has been cr eated, we do not have to clarify the precise distinctions between the two. We simply note that a designated public forum for a limited purpose and a limited pu blic forum are not interchangeable terms. We use the term “limited pu blic forum” here to denote a particular species of nonpublic forum, in accordanc e with the manner in which Summum, the Supreme Court in Rosenbergerand Lamb’s Chapel , and some commentators define that term. See, e.g. , 1 S MOLLA , supra , § 8:8, at 8-5; Andrew C. Spiropoulos, The Constitutionality of Holiday Displays on Public Property (Or How the Court Stole Christmas) , 68 O KLA . B.J. 1897, 1901 n.29 (1997). -19- owned by the County since 1971. Aplt. Reply Br. at10-11 & n. 1. Summum contends the placement of this monolith on governme nt property is enough to create a limited public forum. Id . at 10. As the district court correctly observed, a designated public forum (even the limited purpose variety) cannot be created simply by allowing one private organization access to the forum. See Brown v. Palmer , 944 F.2d 732, 734 (10th Cir. 1991) (en banc); see also supranote 12. Clearly Summum cannot be arguing that the courthous e lawn is a designated public forum. The district court’s conclusion thata designated public forum has not been created, however, fails to address the mor e pertinent question whether a “limited public forum”--in the sense that Summum an d the Court in Rosenberger and Lamb’s Chapeldefine that term under the category of a nonpublic forum--has been created. It is to this third category that we now turn. 14 2. Nonpublic Forum-20-

The final category--the nonpublic forum--consists o f “[p]ublic property which is not by tradition or designation a forum fo r public communication.” Perry Educ. Ass’n , 460 U.S. at 46. The government may limit speech in a nonpublic forum to reserve the forum for the specif ic official uses to which it is lawfully dedicated. See Rosenberger , 515 U.S. at 829; Capitol Square , 515 U.S. at 761. When the government allows selective acces s to some speakers or some types of speech in a nonpublic forum, but does not open the property sufficiently to become a designated public forum, it creates a “ limited public forum.” See Rosenberger , 515 U.S. at 829-30; Lamb’s Chapel , 508 U.S. at 390-92. For example, in United States v. Kokinda , 497 U.S. 720 (1990), a plurality of the Court concluded that the sidewalk in front of a pos t office was a nonpublic forum and upheld postal regulations banning solicitation on the sidewalk. Id. at 732-33. The Court recognized, however, that the postal side walk was “not a purely nonpublic forum” because it had been dedicated to some expressive activity--namely, the post office had permitted some speakers to leaf let and picket on postal premises. Id. at 730. Even so, since the postal sidewalk did no t rise to the level of a designated public forum, the Court proceeded t o analyze the regulations banning solicitation “under the standards set forthfor nonpublic fora.” Id. Regulations of speech in a nonpublic or limited pub lic forum are subject to the more deferential reasonableness standard. This does not mean the government15 In Cornelius , the Court elaborated on both the reasonableness a nd

viewpoint neutrality prong of this test. With resp ect to reasonableness, the Court clarified that not only must the government’s restr iction be assessed in light of the purpose of the forum, but also “all the surrounding circumstances.” Cornelius, 473 U.S. at 809. With respect to viewpoint neutral ity, the Court stated: Although a speaker may be excluded from a nonpublic forum if he wishes to address a topic not encompassed within th e purpose of a forum, or if he is not a member of the class of spe akers for whose especial benefit the forum was created, the governm ent violates the First Amendment when it denies access to a speaker solely to suppress the point of view he espouses on an otherw ise includible subject. Id. at 806 (citations omitted). -21- has unbridled control over speech, however, for it is axiomatic that “‘the First Amendment forbids the government to regulate speechin ways that favor some viewpoints or ideas at the expense of others.’” Lamb’s Chapel, 508 U.S. at 394 (quoting City Council of Los Angeles v. Taxpayers for Vincen t , 466 U.S. 789, 804 (1984)). Thus, “[c]ontrol over access to a nonpubl ic forum can be based on subject matter and speaker identity so long as the distinctions drawn are reasonable in light of the purpose served by the fo rum and are viewpoint neutral.” Cornelius , 473 U.S. at 806. 15 In other words, although content-based discriminati on is permissible in a limited or nonpublic forum if it preserves the purp ose of the forum, when the government moves beyond restricting the subject matter of speech and targets “particular views taken by speakers on a subject,” such viewpoint discrimination-22-

is “presumed impermissible.” Rosenberger, 515 U.S. at 829-30. Viewpoint discrimination is thus a subset of and an “egregiou s form of content discrimination.” Id. at 829. The Court in Rosenbergerdid not explain what specifically is needed to overcome this heavy presu mption of impermissibility. However, we have interpreted Rosenbergerto mean:

[C]ourts must examine viewpoint-based restrictions with an especially critical review of the government’s asserted justifications for those restrictions. Ata minimum, to survive strict scrutiny the [government ’s] policy must be “narrowly drawn to effectuate a compelling state interest.” Church on the Rock, 84 F.3d at 1279-80 (quoting Perry Educ. Ass’n , 460 U.S. at 46).
In Lamb’s Chapel, 508 U.S. 384, the Supreme Court directly addressed the problem of viewpoint discrimination raised by exclu ding private religious speech in a limited or nonpublic forum. A school district , pursuant to state statute, allowed various private organizations to use school property for social, civic, recreational, or political purposes. Lamb’s Chapel , a church, petitioned the school district to show a film on child rearing and family issues from a religious perspective. The school district denied the church ’s request on the grounds that the film appeared “church related” and school prope rty could not be used for religious purposes. Id . at 387-89. The trial and appellate courts held t hat the school property was a “limited public forum,” and t hus, exclusions needed only be16 The Court likewise rejected the school district’s a rgument that the denial

was a “permissible subject-matter exclusion rather than a denial based on viewpoint.” Lamb’s Chapel , 508 U.S. at 396. -23- “reasonable and viewpoint neutral.” Id. at 389-90. Both lower courts held that the school district’s refusal to show the film met this standard. Id. On appeal to the Supreme Court, Lamb’s Chapel argue d that the school property was a designated public forum, and therefo re exclusions were subject to a heightened standard of review. The Supreme Courtdeclined to reevaluate the public forum question, id. at 391-92, and instead took issue with the finding of viewpoint neutrality, id . at 392-93. The Court rejected the appellate court’s conclusion that the school district avoided viewpoint discrimination by treating all re ligions and all uses of school property for religious purposes alike-- i.e. , by banning such uses entirely. 16 This analysis, in the Court’s view, did not answer the “ critical question” whether the school district engaged in viewpoint discriminationby allowing presentations about family issues and child rearing from nonrelig ious points of view while excluding a film dealing with the same subject from a religious perspective. Id. at 393. Because the church’s film “dealt with a su bject otherwise permissible” and it was “denied solely because [it] dealt with asubject from a religious standpoint,” the Court held its exclusion amounted to viewpoint discrimination in violation of the church’s free speech rights. Id . at 394.-24-

In Rosenberger, 515 U.S. 819, the Court clarified the distinction b etween content-based and viewpoint discrimination and adop ted a broad construction of the latter, providing greater protection to private religious speech on public property. See The Supreme Court--Leading Cases , 109 H ARV . L. REV . 111, 214 (1995); see also Grossbaum v. Indianapolis-Marion Bldg. Auth. , 63 F.3d 581, 590 (7th Cir. 1995). There, a state university permitt ed certain registered student groups to receive money from a student activities f und. The regulations governing access to the fund permitted student news groups to seek payment, but excluded religious activities from receiving any support. Rosenberger , 515 U.S. at 824-25. A Christian student newspaper requestedmoney from the fund but was denied on the grounds that it was a religious activ ity. Id. at 826-27. The university argued the regulation excluding all religious activities from receiving financial support was a permissible conte nt-based restriction, which banned the entire subject matter of religion. Id . at 830. Although the Court recognized that “[r]eligion may be a vast area of i nquiry,” “it also provides . . . a specific premise, a perspective, a standpoint from which a variety of subjects may be discussed and considered.” Id. at 831. The university permitted various other student news publications access to the fund, but d enied money to one student news publication which discussed topics from a uniq uely religious editorial viewpoint. The Court concluded that the university impermissibly excluded the-25-

Christian newspaper based on its “prohibited perspe ctive” of religion, and “not the general subject matter” of religion itself. Id

. In Church on the Rock, 84 F.3d 1273, we recognized the broad definition of viewpoint discrimination afforded by the Supreme Co urt to protect private religious speech on public property:

Any prohibition of sectarian instruction where othe r instruction is permitted is inherently non-neutral with respect to viewpoint. Instruction becomes “sectari an” when it manifests a preference for a set of religio us beliefs. Because there is no nonreligious sectaria n instruction (and indeed the concept is a contradict ion in terms), a restriction prohibiting sectarian instruc tion intrinsically favors secularism at the expense of r eligion. Id . at 1279. Church on the Rock involved city-owned senior centers, which permitted private individuals and organizations to use the centers to provide classes and other activities for seniors, id . at 1276-77, including classes on the Bible from a literary, philosophical, and historica l perspective, id. at 1279. City policy prohibited using the centers for sectarian i nstruction or as a place for religious worship, and thus, the city denied a chur ch’s request to show a film on Jesus, which advocated adopting Christianity. Id . at 1277. Relying on Lamb’s Chapeland Rosenberger , we held that the city’s prohibition against showi ng the church’s film on Jesus, “[e]ven if the City had notpreviously opened the Senior17 In Church on the Rock we characterized the city-owned senior centers as designated public fora, but did not apply the compe lling interest test applicable to such fora. Instead, we stated “the City’s policy i s properly analyzed as a viewpoint-based restriction on speech,” and went onto hold that the city had violated the church’s First Amendment rights on thi s basis. Church on the Rock, 84 F.3d at 1279. -26- Centers to presentations on religious subjects,” wa s viewpoint discrimination in violation of the First Amendment. Id . at 1279. 17
In Grossbaum , 63 F.3d 581, a rabbi requested permission to erec t a menorah in the lobby of a city building. The gover nment denied the request because of a policy prohibiting the display of seas onal religious symbols in city buildings. The government erected a Christmas tree in the lobby, however, because it believed the secularnature of the Christmas tree would not result in a violation of its policy. Id . at 582-83. The Seventh Circuit concluded that th e parties did not dispute the lobby was a nonpublic f orum. Id . at 586. After an extensive analysis of Lamb’s Chapeland Rosenberger , the court held that prohibiting a religious holiday display such as a m enorah, while allowing a secular holiday display such as a Christmas tree to stand, constituted discrimination based on a religious viewpoint and v iolated the First Amendment. Id . at 591-92. In sum, while the government does have wide discret ion to regulate a nonpublic forum consistent with the specific purpos e for which it was intended--18 See also Spiropoulos, supra , at 1903 (“If the requested forum is a nonpublic forum and no other speakers have been allowe d to use that forum, then the city most likely can safely deny the request. If o ther speakers have been allowed to use the forum in a way similar to that requested by the religious speaker . . . , the religious group must receive the same permissio n.”) -27- including banning allspeech displays--problems arise when the government allows some private speech on the property. If, for example, the government permits secular displays on a nonpublic forum, it c annot ban displays discussing otherwise permissible topics from a religious persp ective. “The government is on the safest ground in denying a request to erect a d isplay where it has consistently refused to allow any speech displays in the designated area.” Andrew C. Spiropoulos, The Constitutionality of Holiday Displays on Public Property (Or How the Court Stole Christmas) , 68 O KLA . B.J. 1897, 1901 n.29 (1997). 18 In dismissing Summum’s free speech claims, the district court did not consider whether a limited or nonpublic forum had b een created, nor did it apply or even discuss the reasonableness standard applicable to such a forum. The court apparently assumed that the only way Summum could p revail on its free speech claim was by establishing that a designated public forum had been created on the courthouse lawn. In light of recent cases discusse d above, the district court erred in its assumption. We conclude that Summum’s amended complaint suffici ently alleges that a limited public forum has been created and that the County engaged in viewpoint19 In finding that a public forum had not been created , the district court

asserted that if Summum’s position were adopted, “the County could no more chisel the words ‘justice for all’ into the facade above the courthouse entrance without opening itself to contrary opinions similar ly displayed on the courthouse walls.” Aplt. App. at 231. The district court’s a nalogy, however, is inapt. The courthouse is a forum in which cases are tried and official judicial business is conducted; it is reserved for a specific use that i s clearly incompatible with opening it up to the public for expressive activity . The inscription, which the County itself has chiseled on the courthouse, serve s to add an air of solemnity or dignity to the judicial function. However, the Cou nty certainly need not allow any expression that is not relevant to conducting j udicial business in or on the courthouse itself. The Ten Commandments monolith here differs in many important respects from the district court’s “justice for all” hypothe tical. First, the monolith is private speech expressing the views of the Eagles a nd not speech the County itself has uttered in furtherance of official government b usiness. Second, by allowing private speech on the courthouse lawn, the County h as chosen not to reserve the forum for official government uses. Third, the mon olith is situated on the courthouse lawn and not in the courthouse itself. Unlike the courthouse where the actual business of the judiciary is conducted, the courthouse lawn, being outside (continued...) -28- discrimination in violation of Summum’s free speechrights. Summum alleges, and it is undisputed, that the County has permitted the Order of Eagles, a private fraternal organization, to place on government prop erty a display espousing the Eagles’ views. The installation of the monolith is enough to transform the property into alimited

public forum as it has more recently been defined by the Supreme Court. The courthouse lawn cannot be chara cterized as a purely nonpublic forum reserved for specific official uses . By allowing access to the Eagles, the County has opened the forum to at leastsome private expression, clearly choosing not to restrict the forum to offic ial government uses. 1919 (...continued)

and somewhat comparable to a public park or a squar e in front of a state building, is not clearly incompatible with private expressive activity. The district court therefore need not be concerned that the courthouse itself has become a limited public forum simply because the County may have cre ated a limited public forum by allowing a private display on the courthouse law n. -29- Regardless of whether the courthouse lawn is descri bed as a nonpublic or limited public forum, the distinction the County dr ew by excluding Summum’s display while allowing the Eagles’ display to stand must be reasonable in light of the purpose of the forum and be viewpoint neutral. Summum alleges that its requests to erect a similar monolith were summarilyrejected, that County Commissioners have sole authority in deciding who m ay place a permanent monolith on county property as well as the content of such displays, and that the County seeks to censor Summum’s ideas. As we discu ss below, such “unbridled discretion” in the hands of government officials “r aises the specter of . . . viewpoint censorship.” City of Lakewood v. Plain Dealer Publishing Co. , 486 U.S. 750, 763 (1988). Construing the amended compl aint in the light most favorable to plaintiff, we are persuaded Summum has sufficiently stated a claim for relief under the Free Speech Clause. We theref ore reverse and remand for further proceedings. On remand, the district court should carefully cons ider the allegations made in Summum’s amended complaint that the County lacks rules or regulations-30-

governing the placement of permanent displays on co unty property in determining whether the County has acted reasonably and not arb itrarily. Allowing government officials to make decisions as to who may speak on county property, without any criteria or guidelines to circumscribe their power, strongly suggests the potential for unconstitutional conduct, namely favoring one viewpoint over another. As the Supreme Court explains:

[A] law or policy permitting communication in a certain manner for some but not for others raises the spect er of content and viewpoint censorship. This danger is at its zenith when the determination of who may speak and who may not is left to the unbridled discretion of a government official . . . . [B]ecause without stand ards governing the exercise of discretion, a government official may decide who may speak and who may not based upon the content of the speech or viewpoint o f the speaker. City of Lakewood, 486 U.S. at 763-64; cf. American Jewish Congress v. City of Beverly Hills , 90 F.3d 379, 385-86 (9th Cir. 1996) (en banc) (ho lding City’s ad hoc, standardless policy for permitting private rel igious unattended displays in public park violates Establishment Clause because o f its potential for impermissibly favoring one religion over another).
In City of Lakewood, 486 U.S. 750, the Court recognized that an absenc e of express standards made it far too easy for official s to use “post hoc rationalizations” and “shifting or illegitimate cri teria” to justify their behavior, and thus make it difficult for courts to determine whether an official has engaged-31-

in viewpoint discrimination. Id. at 758. Here, the County appears to have shifted positions on its reasons for denying Summum’s appli cation. In its letter to Summum, the County stated that the courthouse lawn was being reserved for other purposes, such as the construction of a county jail . Aplt. App. at 28. However, in its brief the County identified the purpose of the courthouse lawn as providing “an aesthetically pleasing entrance to the courthou se itself.” Aplee. Br. at 22. If this is in fact true, it seems the difference in ac cess to the courtyard between Summum and the Order of Eagles should have been bas ed on the aesthetic value of the monuments, which the County has never argued . Indeed, at oral argument, the County suggested that Summum was denied access because its religious tenets lacked the historical significance and antiquity of the Ten Commandments. On remand, the district court must carefully scrutiniz e the validity of the County’s stated reasons for refusing access to the courthous e lawn to ensure that the County’s justifications are not simply “post hoc rationalizations” or a pretext for viewpoint discrimination. See Cornelius , 473 U.S. at 797, 811-13 (after finding public forum not created, remanding on issue of vie wpoint discrimination and requiring further investigation of government’s “fa cially neutral and valid justifications for exclusion” to determine whether stated reasons were “facade” for viewpoint discrimination).-32-

C. County’s Establishment Clause Defense The County argues that allowing Summum to erect its monolith on the courthouse lawn would amount to state endorsement o f the Summum religion. In order to avoid an Establishment Clause violation, t he County believes it was justified in denying Summum’s requests. The Suprem e Court has recognized the potential conflict between competing First Amendmen t values in cases involving private religious speech on government property, an d has made clear that “the interest of the State in avoiding an Establishment Clause violation ‘may be [a] compelling’ one justifying an abridgment of free sp eech otherwise protected by the First Amendment.” Lamb’s Chapel , 508 U.S. at 394 (quoting Widmar , 454 U.S. at 271). In the context of nonpublic or limited public fora, courts have consistently rejected the government’s assertions that the Estab lishment Clause raises concerns outweighing plaintiffs’ free speech rights

. See, e.g., Rosenberger , 515 U.S. at 839-46; Lamb’s Chapel , 508 U.S. at 394-95; Grossbaum, 63 F.3d at 594- 95. The Supreme Court in Rosenbergermade clear that the government’s “neutrality towards religion” is a “significant fac tor” in determining that the Establishment Clause has not been violated. Rosenberger , 515 U.S. at 839; see also Grossbaum , 63 F.3d at 595 (“[W]hen evaluating the viability of an Establishment Clause defense, Lamb’s Chapelsuggests that an evenhanded,-33-

neutral right of access is just as important in eva luating nonpublic or limited forums as it is in evaluating public forums.”); The Supreme Court--Leading
Cases , supra , at 217 (noting that Rosenbergerignored Lemon test and “instead applied a more coherent neutrality analysis”). As we explained, in order to avoid an Establishment Clause violation, “[t]he governmen t need only remain neutral, preferring neither religious nor secular expressionover the other.” Church on the Rock, 84 F.3d at 1280 (citing Rosenberger , 515 U.S. at 839-40). Government neutrality is further apparent when “‘the governmen t has not willfully fostered or encouraged’ any mistaken impression” that the private religious speech at issue speaks for the state, Rosenberger , 515 U.S. at 841 (quoting Capitol Square , 515 U.S. at 766), and “has taken pains to disassociate itself from the private speech,” id

. Moreover, “the guarantee of neutrality is respected , not offended, when the government, following neutral criteria and evenhand ed policies, extends benefits to recipients whose ideologies and viewpoints, incl uding religious ones, are broad and diverse.” Id. at 839. Even if religion is benefitted incidentall y, so long as the government treats religious and nonreligious speechevenhandedly and cannot be deemed to be sponsoring the religious activity, the government cannot plausibly argue that it is justified in denying private relig ious speech on public property because it fears the Establishment Clause will be o ffended. Capitol Square , 515-34-

U.S. at 762-63; Rosenberger , 515 U.S. at 839-40. Indeed, if the government denies access to private speech because of the reli gious viewpoint of the speaker, the denial itself “risk[s] fostering a pervasive bi as or hostility to religion, which could undermine the very neutrality the Establishme nt Clause requires.” Id. at 845-46. The question here would be whether, by allowing Sum mum’s monolith on the courthouse lawn, the County would “remain neutr al, preferring neither religious nor secular expression over the other.” Church on the Rock, 84 F.3d at 1280. Since we previously ruled in Anderson that the Ten Commandments monument is primarily secular expression, allowing Summum’s religious monolith on the courthouse lawn would arguably “res pect” the Establishment Clause’s command of government neutrality by “exten d[ing] benefits to recipients whose ideologies and viewpoints, including religiou s ones, are broad and diverse.” Rosenberger , 515 U.S. at 839. The County could also easily re quire a disclaimer to distance itself from Summum’s private religious speech. See Capitol Square , 515 U.S. at 769. Moreover, if it is determined t hat the County discriminated against Summum based on Summum’s reli gious viewpoint, it is highly unlikely the County could defend its actions on Establishment Clause grounds. See Rosenberger , 515 U.S. at 845 (“To obey the Establishment Claus e,20 We also remand Summum’s due process and state law c laims. These

claims were dismissed because the district court fi rst dismissed all Summum’s federal, substantive constitutional claims, and thu s, the court never reached their merits. -35- it was not necessary for the University to deny eli gibility to student publications because of their viewpoint.”).

III. In summary, we disagree with the district court’s c onclusion that Summum’s free speech claims are foreclosed as a matter of law. The district court failed to apply the standard applicable to a limited or nonpublic forum. Since we cannot conclude that Summum can prove no s et of facts in support of its free speech claims that would entitle it to relief, we REVERSE the district court’s grant of the County’s motion to dismiss andwe REMAND for further proceedings consistent with this opinion. 20