Pick Your Poison: Private Speech, Government Speech, and the Special Problem of Religious Displays

I. INTRODUCTION For years, the United States Supreme Court has debated the constitutionality of a governmental entity erecting or maintaining an arguably religious symbol on public property.1 A deeply divided and often inconsistent Court has created significant complexity in this area. It has produced a much-maligned "reindeer rule,"2 a sometimes difficult-to-decipher "endorsement test,"3 and, most recently, a pair of Ten Commandments cases decided in the very same Term that declared that such displays are sometimes constitutional4 and sometimes not,5 based on razor-thin distinctions loosely articulated by a single Justice.6 All told, the Supreme Court's handling of purportedly sectarian displays has been convoluted at best.7 Now it seems that the Court has added yet another unnecessary layer of complexity. The "recendy minted"8 government speech doctrine, already applied in a variety of other contexts,9 has in the last two Terms become almost inextricably intertwined with religious speech and Establishment Clause concerns/0 The rise of the government speech doctrine has created a new and exceptionally sticky relationship between the Establishment Clause and the Free Speech Clause, and presents a practical quandary that the Court as a whole has failed to reconcile or even to squarely acknowledge. In the 2009 case of Pleasant Grove City v. Summum11 and the 2010 case of Salazar v. Buono11 the Court faced fact patterns that almost perfectly demonstrate the way in which this complexity is likely to come to a head in the context of arguably religious displays. Both of these cases were layered with doctrinal intricacies and intraCourt splits that somewhat obscure this more basic lesson. But when stripped to their cores, Summum and Buono highlight the tensions that the Court has produced for itself in this particular corner of the government- speech arena. The first case, Summum, involved arguably private speech that the government endeavored to characterize as government speech in order to avoid a First Amendment Free Speech Clause problem13 - and in so doing, potentially created for itself a First Amendment Establishment Clause problem.14 The second case, Buono, involved arguably government speech that the government endeavored to characterize as private speech in order to avoid a First Amendment Establishment Clause problem15 - and in so doing, potentially created for itself a First Amendment Free Speech Clause problem.16 This Article will utilize Summum and Buono to highlight the shared tension that the government speech doctrine creates between the Free Speech and Establishment Clauses. Summum and Buono are briefly summarized in Parts II and III respectively. Using the cases' fact patterns as bookend examples of the new doctrinal tensions, the Article will illustrate the ways in which the Court's newly developed government speech doctrine can be expected to interact with and implicate the Establishment Clause inquiry with potentially troubling ramifications. Part IV will underscore the practical ramifications of the Court's refusal to resolve the tension, and Part V will conclude by offering early thoughts on how the Court could clarify the doctrine in a cohesive way. II. PLEASANT GROVE CITY V. SUMMUM Summum was a suit brought by a religious group17 against the City of Pleasant Grove, Utah ("Pleasant Grove"). Pleasant Grove owns a small park in the town's historic district, containing more than a dozen permanent displays and monuments, including a depiction of the Ten Commandments made of granite.18 As was the case with a majority of the other displays and monuments in the park,19 the Ten Commandments monument was purchased, not by the city directly, but by a private organization that donated it to the city park.20 In the case of the Ten Commandments monument, the donating group was the Fraternal Order of Eagles,21 whose donations of Ten Commandment monuments have featured prominently in some major Establishment Clause cases, most notably Van Orden v. …