From Deseret News archives:
City-monument fight resumes
During an oral argument hearing Wednesday, a three-judge panel of the 10th Circuit Court of Appeals reviewed five pending cases that pit the group Summum against Duchesne and Pleasant Grove cities over Ten Commandments monument displays on city property. Summum sued both cities after they denied the group's request to erect a monument espousing its Seven Aphorisms next to the Ten Commandments displays.
Both Ten Commandments monuments were donated decades ago by local civic organizations and stand in or near city parks.
Summum's attorney, Brian Barnard, argued that city parks are considered public forums and that by allowing Ten Commandments displays, both cities are discriminating against his clients based on their First Amendment speech rights and religious beliefs.
In 2003, the Duchesne City Council voted to deed the property under its monument to the Duchesne Lions Club. Later, because the city mayor was also the Lions Club president, the city took the property back and deeded it to three sisters of the Cole family, which originally donated the monument to the city in 1979.
Currently the monument stands on the tiny private parcel surrounded by a fence and with a sign denoting private property.
Barnard said Pleasant Grove is also discriminating because the city has since allowed a Boy Scout group to erect a monument to fallen 9/11 firefighters near the Ten Commandments display but has rejected Summum's request.
Francis Manion, attorney with the American Center for Law & Justice, which is representing both cities, argued in his brief that Summum has no ties to either community and that Summum's park request would create a "cemetery of permanent private monuments belonging to persons and groups with no connection to the city."
In court, Manion said Duchesne city did its best to avoid the problem by deeding the monument to a private party.
However, appellate judges expressed concern that this would allow city officials to control what speech is expressed in public parks by choosing to whom they will deed property for private monuments.
One judge said the move seems to be "putting form over substance" and seems more discriminatory than keeping the Ten Commandments on public property.
"We still have to ask, 'Is that park a public forum?"' said another judge.
Manion said that, much like the Main Street Plaza issue between Salt Lake City and The Church of Jesus Christ of Latter-day Saints, Duchesne solved the public-forum issue by selling the land.
The judges disagreed, saying removing the monument from public land doesn't change the fact that it can still be seen from the park and that the rest of the park remains a public forum.
Since being sued, Duchesne has passed an ordinance banning all monuments on city property.
A written ruling on the merits of Duchesne's actions and on Summum's pending request for an injunction to force Pleasant Grove to erect the Seven Aphorisms monument will be released in the coming months.
E-mail: gfattah@desnews.com
