The United States Supreme Court heard argument Wednesday on a case involving a Ten Commandments monument that had been placed in a municipal park. In the case, a small religious group requested permission from the municipality to construct in the same park a similar monument to their religion. Their argument was based on the fact that the Ten Commandments monument had been constructed at least in part by private donations and was located in a publicly owned park.
The claim, then, is both a free speech one as well as a religion case. In other words, the plaintiffs had argued that the existing monument was, in effect, an establishment of religion. Also, though, they argued that the municipality’s act of allowing some private persons give money to construct a monument in that park meant that they opened the forum to similar types of expression by anyone else.
The 10th Circuit Court of Appeals (based in Denver) based the decision on the free speech grounds alone, concluding that the municipality in fact did open that forum to others and, as a result, was required to let other groups pay for monuments in the same park. While some desire the Supreme Court to order that the Appeals Court consider the case on an Establishment Clause basis as well, I suspect that the Court will remain in the free speech context to the extent possible.
A decision should be expected in the Spring, and will have an impact on all public entities.