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Justices Side With Navy in Sonar Dispute, Hear Religious Monument Case

November 12, 2008 at 12:00 AM EDT
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The Supreme Court ruled Wednesday to lift restrictions on use of sonar in U.S. Navy training exercises off the California coast. Marcia Coyle of the National Law Journal discusses the decision plus arguments in a church and state separation case.

RAY SUAREZ: Now, two cases at the Supreme Court. The first, an argument over religion and the First Amendment; the second, a decision in a major environmental case.

For more on both, I’m joined by NewsHour regular Marcia Coyle of the National Law Journal.

The first involving religion and display in public parks, what’s the conflict at the heart of this case?

MARCIA COYLE, National Law Journal: Fascinating case. Pleasant Grove is a city in Utah of about 31,000 residents, predominantly Mormon. They have a municipal park, Pioneer Park, that includes a number of historic buildings, monuments, including a monument to the Ten Commandments, gardens that the city says reflects the city’s historical and cultural heritage.

Summum Church is a small, very small group of people who say they do not have a particular dogma, but they believe in what they call seven aphorisms or seven principles of creation that they feel has a tie to the Ten Commandments.

They said that those seven principles were set out on the first tablets given to Moses on Mount Sinai. He destroyed it, went back up to the top of Mount Sinai, came back with the Ten Commandments.

In 2003, the church asked the city if it could erect a monument to the seven aphorisms in the municipal park. The city said no, that it wasn’t in keeping with the historical cultural heritage. Summum sued, saying the city was violating its free speech rights under the First Amendment.

The lower federal appellate court agreed with the city — agreed with Summum, I’m sorry, and the city is now before the Supreme Court.

Limits of the First Amendment

RAY SUAREZ: Haven't there been just in recent sessions of the court Ten Commandments litigation that sort of set out some basic rules on this? And what makes this case different?

MARCIA COYLE: There have been. In 2005, the court had two Ten Commandments cases, one involving a monument identical to the one in Pleasant Grove, but the court split. It upheld the one display of the Ten Commandments on the grounds of the Texas State Capitol, but it struck down another that was displayed in a courthouse. So the rules are not clear.

RAY SUAREZ: How did Pleasant Grove explain its opposition to putting up Summum's seven aphorisms in its park?

MARCIA COYLE: What's so interesting about this case, Ray, is that it involves the intersection of government speech, private speech, and whether the park is a public forum open to all.

Pleasant Grove is represented by Jay Sekulow, who told the justices that, once the city accepted a monument, it is government speech, and government speech is free of the demands and restraints of the First Amendment.

Justice Stevens asked Mr. Sekulow, You know, well -- I'm sorry. I just lost my train of thought. It doesn't happen often.

Mr. Sekulow was also supported by the Bush administration's deputy solicitor general, who said that, when the government approved, for example, the Vietnam memorial, it was not required to approve a Vietcong memorial. Once the government approves a memorial, it is government speech. The government is free to send whatever message it wants. It could even put a memorial up for sale on eBay.

Justice Stevens pushed the government's lawyer a little bit to see, how far does this go? He said, "Could the government decide not to put the names of homosexual soldiers on the Vietnam memorial?"

And the government's lawyer again said, "The memorial, once it's approved by the government, is government speech, and so the government can do what it wants under the First Amendment. There may be other restraints on the government, for example, the Equal Protection Clause, but not the First Amendment."

A 'tyranny of labels'

RAY SUAREZ: Now, even though this was religious speech -- I mean, nobody doubts that the Ten Commandments is a form of religious doctrine -- it was not under the parts of the First Amendment that have to do with religion? It was the free speech parts?

MARCIA COYLE: That's correct. The Summum group, their attorney told the justices that this park is a traditional public forum and, as such, government cannot favor one message over another.

She was asked by Justice Scalia, Is it open to everything?

And she said, "No, not really, because government can put certain restrictions, reasonable restrictions, such as time, place, and manner for what happens in the park, but it can't favor one message over another."

The justices were rather frustrated by both sides of this argument. Justice Kennedy called this the tyranny of labels. You know, what exactly do we have here?

And Justice Scalia was saying, "What we really need is a clear rule for cities so that they know, you know, what they can display in public spaces to convey certain messages."

The Summum's group attorney, she argued that Pleasant Grove could have gotten out of this mess very easily, just as the federal government does. The federal government has a process for approving monuments.

Chief Justice Roberts, for example, said, "Well, we have a Statue of Liberty. Do we have to have a Statue of Despotism?"

And she said, "No, because the federal government has a process, it approves the monument, it becomes government speech. But Pleasant Grove didn't do that. If Pleasant Grove formally adopted the Ten Commandments monument as its own, then it would be government speech and it would be free of the First Amendment."

But here's where religion comes in. The justices pointed out, if the city does that, if it endorses, say, the Ten Commandments monument, won't it have an establishment clause problem? Won't you come back, Summum, and say, "The city is endorsing one religion over another"?

And she conceded the city has a dilemma. But right now, it wants it both ways.

Military, environmental interests

RAY SUAREZ: This will be a fascinating ruling coming later in the term, obviously.

Today the Supreme Court announced that it was siding with the Navy in a case involving sonar -- that is, underwater emanations of sound that bothered whales. Explain what they announced today.

MARCIA COYLE: The court essentially threw out an injunction, a lower court injunction that imposed two restrictions on the Navy when it did its sonar training exercises.

In one case, it was supposed to power down the radar to a certain percentage and in another case turn it off completely, if there was imminent presence of marine mammals in the area.

Chief Justice Roberts wrote for the majority. And the bottom line is he said that the interests of the military don't always trump other interests, such as the environmental interests here.

Yes, there may be harm to marine mammals, but top senior officials of the Navy said that, under these restrictions, the Navy cannot prepare, cannot train for war, cannot protect national security. He said it was not a close question which interest should prevail.

RAY SUAREZ: Marcia Coyle, thanks for joining us.

MARCIA COYLE: My pleasure, Ray.