The result and logic of Summum make sense to me, but I’ve been a little bothered by how far it’s gone.
For example... earlier this year, the 6th Circuit decided Freedom from Religion Foundation v. City of Warren. The City of Warren had a Christmas display in the atrium of their city building—a crèche, a tree, reindeer and snowmen, a sign saying “Winter Welcome”—put up by the Warren Rotary Club. FFRF wanted to put up their own display, a billboard saying that religion was nothing but myth and superstition. FFRF, predictably, was denied the right to put up that display, and sued. (For the sake of disclosure, I should add that I wrote an amicus brief on FFRF’s side for the ACLU of Michigan.) Anyway, throughout the litigation, the City said that the crèche was not their crèche, but that of the Warren Rotary Club. It was not governmental speech, they said, but private speech. The City defended FFRF’s exclusion by saying that their reasons were reasonable and viewpoint-neutral. This was their clear and consistent position, at trial and on appeal. Their brief to the 6th Circuit, for example, said things like, “This crèche is accompanied by a sign that makes clear that it is 'sponsored by the Warren Rotary Club' and not intended to advocate Warren’s viewpoint” (appellee’s brief at 16). So everyone was thoroughly surprised when they got the appellate opinion, http://www.ca6.uscourts.gov/opinions.pdf/13a0049p-06.pdf, which completely re-characterized the case. This was government speech, the 6th Circuit said, despite the City’s own protestations. And evaluated under Lynch/Allegheny County, it was constitutional. I’m not even disagreeing with this result. We should have briefed the government speech / Establishment Clause issues better, rather than focusing on the private speech / Free Speech and Free Exercise issues. But we treated this as private speech, because the City had conceptualized it that way the whole time—including the original letter that had denied FFRF’s request. Litigators beware. Best, Chris ___________________________ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 _____ From: "Len" <campquest...@comcast.net> To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu> Sent: Monday, December 9, 2013 5:31:33 AM Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature Isn't there a significant difference between placing a religious monument in a public park vs placing a religious monument in a State capitol building? _____ From: "Steven Jamar" <stevenja...@gmail.com> To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu> Cc: religionlaw@lists.ucla.edu Sent: Sunday, December 8, 2013 9:46:54 PM Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature Sunnum handles this, no? Sent from Steve's iPhone
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