I understand Dan's point regarding Justice Breyer in the resolution of the Establishment Clause issue. But in this case, counsel for Summum has not claimed a violation of the Est. Cl. Instead, his arguments and the claims of the complaint have been based on the alleged violation of the right to freedom of speech. Can the Establishment Clause question that is not included or presented derail this otherwise straightforward question of whether Pleasant Grove has created a forum for the display of privately donated monuments? Well, never tell the justices they cannot do what they decide to do. But in order to get to the Establishment Clause questions, they will have to go outside of the Questions Presented on Certiorari, outside the scope of the decisions below, and outside the claims made by the Plaintiff. Jim Henderson Senior Counsel The American Center for Law and Justice, Inc.
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