The cross national memorial: at the intersection of speech and religion.

• Author: Dolan, Mary Jean
• Position: Government Speech: The Government's Ability to Compel and Restrict Speech

INTRODUCTION

As the expanding concept of government speech has increasingly succeeded as a defense to private speech claims under the Free Speech Clause, questions abound as to how this will affect the existing doctrinal maze of public religiously themed speech. This Symposium Article explores and reflects on these questions using two frames: Justice Souter's final opinion on "government speech" and the underanalyzed 2002 National Memorial designation of the Mojave Cross war memorial.

Among his parting words on this topic, Justice Souter observed: "The interaction between the 'government speech doctrine' and Establishment Clause principles has not ... begun to be worked out ... [and] it may not be easy to work out." (1) These words may sound puzzling to some. Establishment Clause claims, after all, frequently involve determining whether the speech should be attributed to a private speaker or the government. (2) And so, whatever novelty exists, it derives from his use of the specific term "government speech doctrine," which perhaps is better conceptualized as the "government speech defense."

Before their departure from the Court, both Justice Souter and Justice Stevens described this "recently minted" doctrine as consisting of a narrow canon of cases, including Rust v. Sullivan (3) and Johanns v. Livestock Marketing Ass'n, (4) and now Pleasant Grove City v. Summum, (5) in which "government speech" was asserted to rebuff a Free Speech Clause claim. (6) The general idea is that governments must "speak" in order to govern, and that doing so necessarily requires expressing the political viewpoint they were elected to promote. (7) And so, even where private persons create or transmit the speech, their role does not trigger application of First Amendment speech protections-or require government viewpoint neutrality. (8)

The intersection of religion and speech is complicated by the fact that the two doctrines work in opposite directions. Turning again to Justice Souter's observations in Summum, he explained it as follows: In Establishment Clause cases--where government is required to be neutral, and so seeks to avoid appearing to express a religious message--it typically increases the numbers of speech objects, for the purpose of diluting any religious meaning (9) (think of the creche surrounded by snowmen and carolers upheld in Lynch)). (10) But, he explained, the more objects on display, the harder it then becomes to argue that each one conveys a governmental message. As a result, by taking steps to ward off an Establishment Clause violation, the government risks creating a private speech forum--which, in turn, means losing its "government speech" defense, and thus, being forced to include unwanted messages in its display or program. (11) Under forum doctrine, where a government opens up previously nonpublic property, access or funds to private speakers, it is allowed to set reasonable content or speaker limitations, but the First Amendment requires it to remain viewpoint neutral in administering those categories. (12)

The interaction between the changing speech and religion doctrines is currently framed by two recent, almost inverse, Supreme Court cases. In Pleasant Grove City v. Summum, a Free Speech Clause case, the Court allowed the City to use the new "government speech" defense to reject a small religion's "Seven Aphorisms" marker, while maintaining a donated Ten Commandments monument among its park's permanent collection. (13) While public attention and commentary focused on the unequal treatment of two religious symbols, (14) the Establishment Clause was not at issue there. Instead, the Court analyzed whether, by accepting numerous private monument donations over the years, the City had created a "permanent monument forum" for private speech. (15) The 9-0 decision held that monuments displayed in public parks are government speech, so that the government may express its own viewpoint through such displays. (16)

The second, Salazar v. Buono, (17) was an Establishment Clause case. There, a majority of the Court seemed to approve of privatizing a World War I cross memorial as a means of curing its previously adjudicated Establishment Clause violation, while also averting the disrespect arguably conveyed by forced removal. (18) Procedurally complex and lasting over a decade, (19) Buono did not include a Free Speech claim, but the courts' analysis of the cross's meaning did include some related "government speech." Soon after Buono filed his Establishment Clause claim, Congress designated the controversial cross in the Mojave Desert as a "National Memorial" commemorating U.S. participation in World War I. (20) As discussed below, while the Justices mistakenly assumed that this Christian symbol was the only national monument honoring America's WWI soldiers, they avoided the constitutional issue by construing the land transfer statute as allowing removal of the cross. (21)

Therefore, while neither case presented an immediate need for answers, both Summum and Buono raised questions about the intersection of speech and religion--foreshadowing a more direct collision between two shifting doctrines. One way of framing the analysis is by evaluating the pensive puzzle left behind by Justice Souter:

But the government could well argue, as a development of government speech doctrine, that when it expresses its own views, it is free of the Establishment Clause's stricture against discriminating among religious sects or groups.... Whether that view turns out to be sound is more than I can say at this point. (22) Given his long history of championing strict religious neutrality, (23) this statement from his Summum concurrence is fairly interpreted as a prediction, not a proposal.

This Symposium Article examines the multiple interpretations of Justice Souter's parting words by exploring hypothetical illustrations of the anticipated, post-Summum clash of doctrines. In doing so, it builds on two prior papers with more normative agendas. In an article analyzing Summum, I applied Professor Lawrence Lessig's work on social meaning to argue that the opinion exacerbates the Establishment Clause impact of religious-historical public symbols. (24) Especially given the changed, more combative culture, I proposed drawing a sharp line between preserving monuments erected in more homogenous times--which should be allowed only if accompanied by sufficient explanatory disclaimers--and new government display of religious symbols, which generally should be prohibited. (25) A second article, commenting on the Buono decision, showed how Justices Kennedy and Alito's opinions could be interpreted as using an "expanded endorsement test." (26) By their account, the "reasonable observer" would understand that government action to avoid destroying or removing a historic-religious symbol conveys a different message than would a government's erection of a Christian symbol today. (27)

It is this distinction between old and new--with its intriguing hint of an achievable compromise (28)--that focused my attention on Congress's 2002 designation of the Mojave Desert Cross as a "National Memorial" commemorating World War I. Although occurring during the Buono Establishment Clause litigation, it was not directly at issue in the case. Accordingly, and because the complicated procedural maneuverings took center stage, this religiously themed government speech was underanalyzed. One unique contribution of this Article is new research on the Mojave Cross designation, the general process for creating National Memorials, and the broader range of WWI national memorials. (29)

Interesting in its own right, simply for the additional light cast on a recent Supreme Court Establishment Clause case, this National Memorial designation also provides a platform from which to explore the puzzle presented. Because the designation process turns out to involve substantial private participation--and to be somewhat ad hoc, nonselective, and political--it provides a nice hypothetical. While admittedly a long shot, it is a useful exercise to imagine a rejected speaker claiming that Congress has created a "National Memorial forum" and then suing, in the alternative, on both Free Speech and Establishment Clause grounds. As explained below, there are other credible candidates for WWI National Memorials, including a longstanding secular monument and a tribute to Jewish WWI veterans.

The examples worked through in this Article show that the addition of a Free Speech Clause "government speech" defense is likely to provide a mostly incremental, evidentiary difference. As compared to that common Establishment Clause actor, the offended observer, a rejected speaker-plaintiff, standing alone, will tend to function as a truth-tester for a government's proffered secular rationale. But even so, the added punch of forcing a government to argue affirmatively that a particular religion--and not the rejected other--best symbolizes the government's identity should prove even harder to justify. (30) In a doctrinal area as notoriously contextual as the Establishment Clause, it is more effective to show, rather than to simply tell, these conclusions.

First, this Article briefly reviews how Pleasant Grove City v. Summum expanded the "government speech doctrine" to include broad "identity" messages. The second Section explores several possible interpretations of Justice Souter's melancholy reflections. Third, the Article provides the necessary background from Salazar v. Buono. Next, the Article sets forth the new National Memorial research and evaluates whether the Mojave Cross National Memorial, standing alone, violates the Establishment Clause. Finally, the last Section considers what would be added to the analysis if Congress were to refuse National Memorial status to the alternative WWI symbols, while continuing to bestow that honor on the small cross in the desert.

1. A BRIEF...