Rehearing sought in Summum case

The cities of Duchesne and Pleasant Grove have asked that all 15 judges of the 10th Circuit Court of Appeals re-hear the issue of a Utah religious group that wants to erect a monument next to the Ten Commandments displays in their city parks.

The request comes after a ruling last month by a three-judge panel that the group had a right to put up the monument under the First Amendment.

In a petition filed this week, both cities have asked that the issue be re-heard "en banc," in which 15 of the circuit's judges will sit and hear arguments in the case. Typically appeals cases are heard by three-judge panels. En banc decisions tend to carry more legal weight among other federal circuit courts and the U.S. Supreme Court.

Last month, the 10th Circuit ruled that the group Summum had a right under the First Amendment to erect a display of its Seven Aphorisms next to the Ten Commandments displays. The ruling was similar to an opinion the 10th Circuit issued in 2002 in a similar suit filed against Ogden city by Summum. The appellate court's ruling forced Ogden to remove the display from city property and relocate it to private property.

All three displays were donations made by the Fraternal Order of Eagles many years ago.

In their petition, both cities claim that past 10th Circuit panels based their conclusions on an "erroneous understanding of government speech."

The cities argue that once an item is donated to a governmental entity, that item — be it a painting, sculpture or other display — becomes the speech of the government and no longer of a private group or person. To that end, the government speech is indicative of the community it represents.

The petition states: "Under the flawed private speech jurisprudence of the panel in this case ... there exists no principled basis upon which the government could turn down for permanent display on Liberty Island a donation of a 'Statue of Tyranny,' or, perhaps, a new copper colossus bearing the message 'Pay No Attention to the Lady With the Torch — the Golden Door is Now Closed!"'

Both cities also argue that by opening up public places, such as parks, as a speech forum could turn such places "into a cluttered junkyard of monuments contributed by all comers."

Summum attorney Brian Barnard said if the cities don't allow his clients to set up their own monument, their only other choice will be to remove the Ten Commandments from their parks and allow no such monuments.

According to Summum's Web site, the Seven Aphorisms were passed down from God to Moses, along with the Ten Commandments, but were withheld from followers because they were not capable of understanding. The tablet was destroyed and Moses revealed them to only a select few.

The Seven Aphorisms deal with the principles of psychokinesis, correspondence, vibration, opposition, rhythm, cause and effect, and gender. The group also believes in the practice of mummification and believes the pyramids of Egypt are storehouses of knowledge and keys to advancement in spiritual evolution.

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