In January, the Supreme Court decided Pleasant Grove City v. Summum. Summum, a religious organization, sought the right to put up a permanent monument of its Seven Aphorisms—its version of the Ten Commandments—in a local city park. At the time, the park had about fifteen other monuments, including a traditional Ten Commandments display. But this was a Free Speech case, not an Establishment Clause case. The plaintiffs were not trying to use the First Amendment to have the existing Ten Commandments display removed; they were instead trying to use the First Amendment to force the city into displaying their monument as well. Most people expected the plaintiffs to lose. And they did, clearly and unanimously. I publicly predicted that Summumwould lose on the day the Supreme Court granted certiorari, and suggested that it might be unanimous a few hours after oral argument. But I do not claim any special powers of foresight. My point is actually the opposite—anyone with experience in this area could recognize that the plaintiffs faced an uphill climb. They were asking for a sweeping change in the law, and it was no surprise that they did not get it. This Essay explains the decision in Summum, giving special focus to the religious dimensions of the case. Summum, again, was decided on Free Speech grounds. It was not an Establishment Clause case. But it nevertheless reveals much about the course that the Supreme Court is now charting with the Establishment Clause.
