Jay Sekulow: November 2008 Archives

Barry, you are right on target.  It is certainly up to President-elect Obama and his wife to make the best decision possible for the education of their two daughters.  This is a private, family matter. But, as we both know, the media is anxious to make a story where there is none.

There's no secret that Sidwell Friends has the kind of procedures and planning in place to handle high-profile students.  The last presidential child to attend that school was Chelsea Clinton, who was there a decade ago.  And many years before the daughter of President Nixon (Tricia Nixon Cox) went to school there.

If the pundits are smart, they will let this issue go.

The simple truth is that there will be many changes ahead when President-elect Obama takes the oath of office in January.  And, it's also true that the lives of the First Family will change dramatically.  More scrutiny.  Less privacy.  Of course, it comes with the territory.  As President-elect Obama recently told 60 Minutes:  "One of the challenges I think that we're going to be wrestling with is how to stay pretty normal."

Longtime family friends predict the Obamas will do everything they can to maintain a 'normal' life inside the White House.  But as anyone knows, and as the Washington Post points out, that will not be easy.

Barry, the reason that you had "many moments of doubt" during the argument is that the Pleasant Grove City v. Summum case is about the meaning of a different provision of the First Amendment: "Congress shall make no law . . . abridging the freedom of speech."

This case deals with the government's authority to craft its own message and, as you recognize, "[w]hen government 'speaks' about best presidents or embraces the principle of liberty, it has every right to reject alternative views." Here, Pleasant Grove owns and displays a variety of artifacts, monuments, etc. in its Pioneer Park that have historical relevance to the community or were donated by groups or individuals that have longstanding ties to the community. Among these is a Ten Commandments monument donated by the Fraternal Order of Eagles almost 40 years ago that, in the Mayor's words, would "remind citizens of their pioneer heritage in the founding of the state." By contrast, Summum has acknowledged that it has no ties to the community and its proposed monument has no historical relevance to the community. It is undisputed that the criteria used to accept or reject monuments are unrelated to any religious doctrine.

In short, this case is about whether private parties can require the government to alter its message, and it sounds like you agree with our position on that point. There is no First Amendment Establishment Clause claim in this case (which would be inconsistent with Summum's Free Speech claim) but, in any event, a hypothetical claim would be similar to the one that the Court rejected a few years ago in Van Orden v. Perry, 545 U.S. 677 (2005) (plurality). It does not violate the Establishment Clause for the government to include the Ten Commandments among other historically relevant monuments, artifacts, pictures, plaques, etc. for a secular reason such as "remind[ing] citizens of their pioneer heritage in the founding of the state."

It was an hour of spirited, lively debate before the Supreme Court.  And, now that oral arguments have concluded and the case is in the hands of the Justices, I am hopeful that the Supreme Court will determine that the appeals court got it wrong and uphold the authority of Pleasant Grove City, Utah to determine what's included in its park.

In presenting oral arguments on behalf of Pleasant Grove City, I was pleased that our arguments resonated with the Justices.

We have argued all along that the 10^th Circuit decision, if left unchecked, would have sweeping ramifications nationwide - putting long-standing historic and patriotic displays and monuments across the country at risk.

One of the key illustrative arguments in our briefs put this issue into clear perspective:  "Accepting a Statue of Liberty does not compel a government to accept a Statue of Tyranny," as we contended in our opening brief.

I was pleased to see Chief Justice Roberts amplify our argument when he pressed the attorney who represented the group Summum:  "You have a Statue of Liberty. Does that mean we have to have a Statue of Despotism?  Or do we have to put any president who wants to be on Mount Rushmore?"   That's exactly what's at stake in this case.

A transcript of the oral arguments is available here.

Historic monuments and plaques serve as the institutional memory of many communities and cities throughout the United States.  This is one of the ways that governments tell the story about the unfolding drama of the United States which includes the history and heritage of our nation.  It would be tragic if governments were faced with a choice of either removing these monuments or accepting all monuments, including those that not only do not reflect our history, but also hold in condemnation some of our greatest American heroes. 

Already there are groups demanding to put up memorials chastising our soldiers and saying they deserve what they got when they were wounded or killed.  This is one of the reasons the United States Government filed briefs on our side and participated with me in the oral argument.

When Pleasant Grove City accepted the donated monument of the Ten Commandments by the Fraternal Order of Eagles nearly 40 years ago, the city took ownership and control of the monument, making it government speech.  And, as government speech, the city government is free to select among the messages it wants to convey to its citizens.

It's also clear that this case involves the Free Speech Clause of the First Amendment, not the Establishment Clause.  Even if the Establishment Clause were at issue, which it isn't, the city's acceptance of the Eagles' monument is no more an endorsement of religion, as I told the Court, than is the depiction of Moses holding the Ten Commandments clearly visible in the frieze of the Supreme Court's own chamber.  The fact is that the city government of Pleasant Grove hasn't established anything by accepting the Ten Commandments monument.

I am hopeful that the high court will reverse the 10^th Circuit.

Barry, as you note, the Summum group did not bring an Establishment Clause challenge in this case.  In this First Amendment case, we believe the Supreme Court is faced with an easy choice:  preserve sound precedent involving the well-established distinction between government speech and private speech - or permit a twisted interpretation of the Constitution to create havoc in cities and localities across America.

If the 10^th Circuit decision is permitted to stand, the fact is that cities could be forced to either dismantle a host of monuments, memorials, and other displays, including long-standing patriotic and historical displays, or else let all comers install privately owned monuments or displays, regardless of content.

Under the 10^th Circuit's logic, federal, state, and local government bodies would be sitting targets for demands that they cede piece after piece of government land to forced occupation, by any group, with whatever monuments that group wishes to have installed, be it Summum's Seven Aphorisms, PETA's suffering circus elephant, or Fred Phelps's denunciation of homosexuals.

It's our position that cities like Pleasant Grove are engaging in government speech which gives the government authority to control its message.  In this case, just because the city years ago decided to accept and display a donated monument of the Ten Commandments from the Fraternal Order of Eagles (as thousands of communities did nationwide) does not compel the city to accept and display any other monument.

In our briefs submitted in this case, we have made it clear that in our view the 10th Circuit made several crucial errors in constitutional analysis.  We argue that the First Amendment does not require that a government park be turned into a cluttered junkyard of monuments contributed by all comers.

The appeals court confused the distinction between government speech and private speech.   Our brief contends that "a city's selection of which items to display in a park - like its selection of decorations for government buildings - is government speech, and no private entity can claim a 'Me too!' right of access for its own preferred displays."

"That the items the government selects may have private origins does not mean that the private sources are the ones who are speaking through the selection process," our briefs contend.  "For example, while The Great Gatsby is admittedly not government speech, the selection of that book for placement on a public library's shelves is government speech. F. Scott Fitzgerald (were he still alive) could neither insist on the book's inclusion . . . nor object to its removal from the shelves to make way for the latest Harry Potter book."

Further, accepting a Statue of Liberty does not compel a government to accept a Statue of Tyranny.

As we argue in our reply brief, the basic question is whether a city gets to decide which permanent, unattended monuments, if any, to install on city property.  In our view, the answer must be 'Yes.'

Barry, I had hoped you would have filed an amicus brief supporting our position.  Many other organizations and groups did.  Fifteen friend-of- the-court briefs have been filed supporting our position, including briefs from the United States government, fourteen states, nine cities (including New York City), veterans groups (including the American Legion and the VFW), and various religious liberty groups (including both Christian and Jewish organizations).

As with any oral argument before the high court, I am expecting a vibrant and engaging exchange with the Justices tomorrow.  I am hopeful that a majority of the high court will uphold this important distinction between government speech and private speech.  And that means overturning the 10^th Circuit.

President-Elect Obama is rapidly moving to get up to speed on the many issues he is facing.  It's clear that the economy, which was by far the key issue in the election, is also front-and-center in this post-election/pre-inauguration window.  And, certainly after the Obama Administration begins governing and the 111^th Congress is seated, most of the focus and direction is certain to be on fixing the ailing economy.

At the same time, though, there is already speculation about what an Obama Administration will mean for judicial appointments.  USA Today reported what's at stake as the President-Elect considers appointing a new Solicitor General (SG), the government's top attorney before the Supreme Court.  And, as we know, the SG post can be a stepping stone to the Supreme Court.  Justice Thurgood Marshall was named Solicitor General by President Johnson before being named to the high court.

There are also reports that Democrats are anxious for President-Elect Obama to put what's been called his 'progressive stamp' on the federal judiciary.

Yes, the economy will be at the forefront of an Obama Administration, as it should.  But, we'll soon learn more about our new president and his judicial temperament - his judicial philosophy - something that was never really fully examined or explored during the campaign. 

There are key appointments that need to be made soon:  Solicitor General, Attorney General and other Department of Justice posts.  Then, comes nominees to the federal bench - including those much-talked about vacancies that could occur on the Supreme Court. 

Barry, one of the most popular questions being asked now is "How will President-Elect Obama govern?"  I would add to that, how does he plan to 'reshape' the judiciary?