As a U.S. District judge in Salt Lake City, Dee Benson doesn't get to gloat over a victory, or, in this case, even comment on it or say he told "them" so.
So I'll do it for him.
He told them so.
I imagine somewhere, in his chambers perhaps, he gave one of his clerks a high five or some bones or a Tiger Woods fist pump. You can't blame him.
No less than the U.S. Supreme Court ruled last week that Benson got it right a dozen years ago — that the government has free speech, too, and just because it decides to erect a monument in a public place (i.e., the Ten Commandments in Pleasant Grove's park), doesn't mean it must put up one for everyone who asks for it and host a monument free-for-all.
Benson and Pleasant Grove didn't merely win and settle a matter that has plagued cities nationwide for years, they won by a rout. The Supreme Court ruled 9-0 in favor of Pleasant Grove, which had sought to keep the Ten Commandments in its park. This was such a no-brainer that even the court agreed unanimously. Even Super-Liberals like Ruth Bader Ginsburg.
Nine to zip. The Supreme Court couldn't vote 9-0 on when to take a lunch break; it would be 5-4. They can't agree on anything. Except this. It was a no-brainer. You didn't even need to go to law school to figure it out. All you needed was common sense.
Justice Samuel Alito wrote, "It is clear that the monuments in Pleasant Grove's Pioneer Park represent government speech. A public park, over the years, can provide a soapbox for a very large number of orators — often, for all who want to speak — but it is hard to imagine how a public park could be opened up for the installation of permanent monuments by every person or group wishing to engage in that form of expression."
Which is just what Benson said a dozen years ago.
Cases like this arose as early as 1973, when the ACLU sued to have an inscription of the Ten Commandments removed from the base of the steps of the Salt Lake County Courthouse — a donation from the Boy Scouts. The ACLU claimed it violated the establishment clause in the Constitution (that America would establish no state religion). District judge Alden Anderson said, no, it didn't, and the district court of appeals in Denver affirmed his ruling.
In 1996, along came Summum and lawyer Brian Barnard. Because the case had already been lost on the establishment clause, they turned it into a free speech issue.
Besides what has already been mentioned, Benson ruled it would be impractical. Government agencies can put up monuments that have some significance for the community, but that doesn't mean it has to accept everyone. Government has free speech like the rest of us. Just because New York accepted France's gift of the Statue of Liberty doesn't mean it is obligated to accept a gift of, say, the Statue of Tyranny, from China, or monuments from PETA or Greenpeace or anyone else. The harbor would be so cluttered that ships would have to find another port.
The 10th Circuit of Court of Appeals in Denver not only overturned it, but it included a little condescension and cheekiness in its ruling, claiming the judge (Benson) hadn't applied the proper legal tests and so forth.
A few years later, Pleasant Grove tried an end-around by selling the plot of land where the monument was located back to the park's original owners, and Benson again ruled for the city. Again, the decision was appealed and reversed by the circuit court.
Pleasant Grove appealed to the Supreme Court and last week the court reversed the reversal, and cities all over the state (country?) could breathe a sigh of relief.
Justice Alito wrote, "Speakers, no matter how long-winded, eventually come to the end of their remarks; persons distributing leaflets and carrying signs at some point tire and go home; monuments, however, endure. They monopolize the use of the land on which they stand and interfere permanently with other uses of public space."
Benson put it in folksier terms years ago when he wrote that any other decision would "open the door to another display and then another, and so on, until the city park looks like a NASCAR driver at the Brickyard 400."9 comments on this story
From the start Benson had tried common sense and humor on this issue. At one point during the Pleasant Grove case, Benson asked both sides if they could resolve the issue without his help. "Can you settle this thing?" Benson said. "Maybe you can let them have five commandments."
If Benson isn't celebrating publicly, it's understandable. If there's anything to be learned from all this, it's this: Just because someone rules one way doesn't mean it's set in stone; it can change.
For now, Benson and cities around Utah can claim their victory until Barnard and friends figure out another way to split constitutional hairs. By the way, Barnard says he'll try the establishment clause. They're right back where they started in 1973.
Doug Robinson's column runs on Tuesdays. Please send e-mail to firstname.lastname@example.org