Yet, the Court has consistently dodged the question of whether one type of religious government speech is constitutional—namely, speech that is often called “ceremonial deism.” That term is commonly used to refer to brief or passing religious references, such as the national motto (“In God We Trust”), the words “under God” in the Pledge of Allegiance, the city names Corpus Christi and St. Louis, and the abbreviation “A.D.” (Latin for “In the year of the Lord”). In 2004, the Court dismissed a constitutional challenge to the recitation of the Pledge of Allegiance in public schools without reaching the merits. The Supreme Court has not decided any other direct challenges to the constitutionality of these brief religious references; instead, various Justices have voiced their views on the matter in dicta, usually suggesting that these references pass constitutional muster because they have lost their religious meaning over time. And while lower courts have faced more direct challenges to ceremonial deism, they have largely espoused the same “secularization” thesis with very little supporting analysis.

It is surprising that little consideration has been brought to bear on the validity of the secularization thesis. Indeed, courts have focused minimal attention on the problem of discerning the meaning and effect of these phrases. Linguistic theory, however, may provide some answers to the thorny constitutional questions that ceremonial deism presents, or at least suggest directions for more nuanced analysis.

 
I.
Speech Act Theory

Speech act theory is a branch of philosophy of language that considers how language actually works—and how and why it fails. Rather than considering language as abstract means of conveying truth, speech act theory looks at language as it is used in everyday life, perceiving language primarily as doing—as bringing about states of affairs, with greater or lesser degrees of success. It is easy to come up with legal examples of language bringing about concrete effects: imposing a prison sentence, enjoining a party from taking an action, and forming a legally binding contract are obvious instances of speech acts—that is, of actions that are performed by and through language.

Less obviously, even describing a state of affairs involves doing something with words, just as much as sentencing and enjoining and contracting do. A descriptive utterance accomplishes something specific and distinct through the use of words. And it may often also be an “act” in the sense that it does more than passively observe or describe: it may also help to construct the reality to which it merely refers or purports to refer. Descriptions and statements may tend to reinforce particular truths or realities by presenting them as fact rather than as one contested viewpoint among many.

Speech act theory refers to the act performed by and in speaking (describing, sentencing, enjoining, and so on) as illocutionary force. Every meaningful utterance possesses some illocutionary force.

 
A.     Conventionality and Iterability

To be effective as a speech act, any meaningful statement must be uttered under the appropriate conditions. For example, the speech act of bequeathing possessions to an heir cannot be performed successfully unless certain conventions are met. Those conventions include the numerous formalities pertaining to wills under state law, such as signature and witness requirements; the requirement that the bequeathing person has the legal authority to dispose of that property; and the requirement that the individual not be incompetent, under duress, performing in a play, or giving an example of performative utterances in a law review article when the words are uttered. The words themselves are also part of the conventionality of the speech act: although many different combinations of words may be used to bequeath one’s possessions, those words must still be recognizable to the relevant readers as words of bequest.

Moreover, if language is conventional, it must function according to a set of learnable, and thus reproducible, rules. The functionality of language depends, in other words, on its ability to be repeated—on the ability of certain speech acts to be replicated in a variety of contexts. But this ability to be repeated, or iterability, also means that any linguistic utterance is capable of being cut off from both its original context and its speaker’s intent to be reproduced in a context that may change or undermine its prior meaning or in ways that may not have been originally intended.

Many examples of ceremonial deism—city names, the national motto, the language of the Pledge, and even Christmas trees—function by means of this iterability; indeed, they must function in the absence of any particular speaker or any particular intended hearer. The national motto on coins, for example, is recognizable as such because of the repetition of its exact phrasing and its placement on the coins. But at the same time, its repeatability, and thus its recognizability, is exactly what opens it up to new, and possibly ironic, use in other contexts—such as the joke “In God we trust; all others pay cash.” The joke draws its humor from the way it trivializes the religious component of the motto, as well as the way in which it associates God and Mammon—an association that is latent but unexplored in the motto’s use on currency itself. In fact, the joke is comprehensible only in terms of its religious origins.

Yet the possibility of changed meaning need not be relevant only when a phrase or term is used facetiously. Placing religious-themed artwork in the context of a public museum, for example, will usually remove the religious significance from the government’s decision to embrace that religious speech. Even if the artwork itself has deep religious meaning, its placement in the National Gallery would not suggest the illocutionary act of government endorsement of religion, but rather of depiction of religious events, or simply of visually “quoting” the artist’s religiously motivated expression.

 
B.     Meaning’s Vulnerability—and Its Persistence

Despite this vulnerability to change, illocutionary force possesses a surprising persistence. Each time a term is used, it invokes its past usages and thus reconsolidates them, reminding the reader or listener of its historical meanings. The joke “In God we trust; all others pay cash” makes sense only because it reminds the listener of the religious origins of the phrase, though its bent is decidedly secular. But more serious uses of the national motto also draw and rely upon its original religious meaning. The phrase “In God We Trust” was initially imprinted on coins as a way of signifying the nation’s religious and patriotic commitment in the Civil War era; its adoption as the U.S. national motto during the Cold War was infused with a similar sentiment. Coexisting with those sentiments, moreover, was a spirit of exclusion—a desire to distinguish the United States from other so-called heathen or godless atheistic nations, which consequently labeled nonbelievers as unpatriotic. When the motto is used in a solemnizing way or as an expression of national unity, it is capable of performing those solemnizing and unifying functions precisely because of its invocation and repetition of the set of religious beliefs and practices that originally motivated its creation and its adoption as the motto. Its usage relies on the unique power conferred by the religious force of the motto’s prior usages to accomplish the act of solemnizing or unifying. Nonetheless, the motto’s defenders, like the courts that have considered its constitutionality, often deny both the phrase’s original religiosity and the spirit of exclusion that motivated the motto’s adoption, thereby allowing the motto to give the illusion of voicing a universal and purely patriotic belief that can claim the support of virtually all citizens.

Meaning is thus at once both vulnerable and surprisingly persistent. Moreover, speech acts often appear to deny or conceal their original context despite the fact that the original context continues to give the speech act its force. Further, the original context that must be concealed is often one of political or social subordination or strife. Ignoring this strife allows the speech act to appear to possess a singular, unifying, and uncontroversial meaning. But in reality, the past meaning persists, if only as the original context that gives the speech act its force and authority. Past social context therefore plays a role in interpreting these speech acts.

 
II.
The Implications of Speech Act Theory for the Constitutionality of Ceremonial Deism

 
A.     A Rebuttable Presumption

It would be foolish to contend that the complex body of theory I have just described can yield easy answers to constitutional challenges. Nonetheless, I believe some directions for analysis can be identified. Specifically, courts should adopt a rebuttable presumption of continuing religious meaning when confronted with an Establishment Clause challenge to ceremonial deism. Of course, speech act theory’s emphasis on illocutionary force suggests that the presence of facially religious language should not automatically mean that the language’s effect is religious. At the same time, speech act theory teaches that meaning, although vulnerable to change, has a tenaciousness that is often underappreciated. A rebuttable presumption of religious meaning is therefore appropriate as an acknowledgement of this tenaciousness.

Moreover, a rebuttable presumption is appropriate because speech act theory teaches that the speech acts of “describing” and “acknowledging” may be far less neutral and passive than they appear. The act of describing a reality may instead have a tendency to create and enforce that reality; moreover, this danger seems particularly acute when the describing is done in the name of the state. This effect may be intensified rather than lessened by the repetition of certain phrases throughout history, as that repetition, too, may be an attempt to shore up the reality that the phrase appears merely to describe.

Finally, the capacity of meaning to persist over time also suggests the importance of history and social context in determining whether a speech act retains its religious force. As described above, speech acts have a tendency to conceal the sort of history of subordination or divisiveness that lies behind them. Accordingly, courts should be particularly sensitive to clues regarding an utterance’s history.

The rebuttable presumption I envision would function primarily as a burden-shifting technique. A plaintiff challenging an instance of ceremonial deism would have to show only facially religious language to get the benefit of a rebuttable presumption of continuing religious meaning. At that point, the burden would shift to the government to prove that the religious meaning has been lost. The government could do so in one of two ways. It could either demonstrate the absence of religious illocutionary force, as in the case of place names or other genuinely referential or citational phrases, or it could show that the sociohistorical context contains no divisive or religiously oppressive past that continues to inform present usage. If the government’s showing is unconvincing or if the plaintiff is able to undermine the government’s claims, the utterance should be considered a religious one.

 
B.     Examples

1.   Place Names

Challenges to the constitutionality of city names like Corpus Christi and St. Louis are the cases in which the presumption would most likely be rebutted. Although these names have facially religious—even sectarian—content, they do not generally carry an illocutionary force that can be described as religious when they are used as proper names to refer to long-established cities. Indeed, the city names of San Francisco and Los Angeles may carry with them many connotations, but religiosity, sainthood, and angels are not among the most immediate that leap to mind. Rather, those place names legitimately may be understood as referring to—almost “quoting”—the city’s origins, which may have been founded in tribute to a religious figure. Indeed, it seems that place names simply function differently from mottos or pledges: they are neither assertions of fact nor declarations of beliefs but simple referents whose arbitrariness is more or less assumed by those who use them. Religious city names thus may be one instance in which a term has legitimately lost its religious meaning. Indeed, in most cases it will be easy to show that the name, like most names, does no more than refer to the city’s historical origins or the religious figure after whom the city was named.

2.   The National Motto

In the case of the national motto, the presumption of religious meaning could not be rebutted. The government could show neither that it lacks true illocutionary force—when posted in schools or stamped on coins, it is not a mere placeholder or referent—nor that the motto’s sociohistorical context is free of divisiveness or religious subordination.

Courts should not ignore the fact that the motto is associated with periods in American history of intermixed religious and patriotic sentiment—namely, the Civil War and the Cold War. These periods were moments not just of generic religious sentiment but of attempting both to assert and consolidate the supremacy of God in the nation. And inevitably, this assertion and consolidation was accompanied by an intent to exclude and label as unpatriotic anyone who—like the godless communists—rejected the view embodied in the phrase.

It is precisely this intermingling of piety and patriotism—the national unification under the umbrella of religion that is both described and enforced by those practices—that is troubling. Courts’ description of the national motto as merely a historical acknowledgement obscures the religious and religiously divisive history of these practices by making them synonymous with patriotism. A presumption that the national motto has enduring religious meaning should not, therefore, be rebuttable.

Acknowledgments:

Copyright © 2010 Duke Law Review.

B. Jessie Hill is an Associate Professor at Case Western Reserve University School of Law.

This Legal Workshop Editorial is based on the following Law Review Article: B. Jessie Hill, Of Christmas Trees and Corpus Christi: Ceremonial Deism and Change in Meaning Over Time, 59 DUKE L.J. 705 (2010).

Some scholars see in this agnostic quality a constitutional mandate for governmental secularism; indeed, they may appeal directly to the agnostic quality of the Constitution as a way of avoiding the labyrinthine jurisprudence of the First Amendment’s religion clauses.  But is the appeal well taken?  More generally, what are the implications, if any, of the Constitution’s agnosticism for the relations among government, religion, and citizenship in this country?

I.
Irrelevant Agnosticism?

Perhaps the most obvious answer—surely the simplest, anyway—would assert that the agnosticism of the Constitution has no implications at all for how governments in this country should relate to religion.  Why should silence, on any subject, have any particular implications?  There are many things, after all, that the Constitution says nothing about.  Hunting, for instance.  Or space exploration.  Nothing much is thought to follow from this silence.  No one argues that because the Constitution doesn’t talk about hunting, governments in this country are forbidden to notice or regulate the activity.  Instead, we assume that if a particular government (local, state, or national) would otherwise have the power to regulate hunting, or to prohibit it, or to subsidize it, then that government may use its judgment and exercise its power as it thinks best.  The Constitution’s silence neither compels nor constrains.

The same goes for space exploration—and, arguably, for religion.  The Constitution contains provisions, of course, that are thought to constrain American governments in their dealings with religion—most obviously the First Amendment.  But the Constitution’s overall agnostic quality would in this view simply be irrelevant to the question of what governments can do to, for, with, or about religion.

This is, as I said, the simplest answer to the question of the implications of the Constitution’s agnosticism.  There are, however, at least two reasons to be skeptical of this answer.

First, the Constitution’s original and continuing silence on religion seems to have been a deliberate decision made in purposeful contravention both of the wishes of many Americans (both in the founding period and subsequent to it) and of many of the relevant models—foundational documents like the Declaration of Independence, the Articles of Confederation, and the constitutions of nearly every state (and some foreign countries, such as Canada) that did or do explicitly pay their respects to deity.  So it would seem that the Constitution’s silence on this subject is more portentous than its silence on many others.

Second, it seems at least possible that the Constitution’s silence on religion ought to mean something, in the sense that this purposeful silence might usefully serve to ground or inform some valuable constitutional strategy for dealing with the challenges of community and citizenship in a religiously pluralistic society.  But what might that strategy be?  And how might it be served by the Constitution’s agnosticism?

II.
Mandatory Public Secularism?

In modern times, following the demise of Christendom and the failure of Westphalia’s cuius regio eius religio² principle as a device for dealing with the religious fragmentation that followed the Protestant Reformation, a favorite strategy for dealing with religion has been public secularism.  Practical and theoretical variations on the strategy are legion, of course, but the basic idea is that religion should be protected in but also confined to the private domain, while government should operate in the realm of the secular.  In this way, citizens can continue to profess and practice their various religions without persecution or impediment.  And government, for its part, can perform the worldly work that is proper to it while remaining serenely “neutral” in matters of religion.

“Reasonable” and civically responsible people, it is said, ought to be content with this sort of arrangement.  In reality, as we know, some people aren’t happy with it.  But shouldn’t they be?  All that is being asked is that they believe their creeds and live their religions, and that they refrain from imposing these views on others.  What could be more reasonable?

For proponents of this strategy, the agnosticism of the American Constitution may seem a godsend.  Thus, especially of late, some scholars and advocates have emphasized the Constitution’s agnostic or “godless” quality as a basis for requiring that American governments generally confine themselves to the realm of the “secular.”³ Usually, of course, the requirement of public secularism is derived more specifically from the First Amendment’s Establishment Clause.  But for those who are scrupulous about original or intended meaning, grave difficulties attend this derivation (difficulties which we need not worry about here).  So it would be convenient for proponents of mandatory secular government to find a constitutional source or argument that did not depend on that vexed textual provision.  The Constitution’s general agnosticism presents an inviting possibility—one that advocates of public secularism increasingly seem inclined to use.

But there are also problems with using the Constitution in this way.  Simply as a matter of construction and logic, the argument is problematic:  “The Constitution is agnostic (or secular); therefore, governments operating under the Constitution must be agnostic (or secular).”  The proposition seems a bald non sequitur.  The Constitution basically establishes a structure of government for the United States; it does not spell out any particular substantive ideology or governing philosophy that government(s) either must or must not follow.

Consider:  One can imagine a church whose articles of incorporation and bylaws are written in purely secular legal terms.  It would hardly follow from the fact of a secular constitution that the church itself is prohibited from being religious.  In a similar way, the United States Constitution is basically a set of articles of incorporation or imposed bylaws for American governments.  From the secular character of those provisions no general requirement of public secularity need necessarily follow.

So the “secular government” conclusion seems dubious as a matter of straightforward constitutional construction.  But it is dubious as well as a strategy for dealing with religious pluralism.  Its difficulties were perhaps less apparent a generation or so ago, when most thinkers foresaw a “secular” future in which religious belief and practice were destined to dwindle. At that time, reading a requirement of public secularism into the Constitution might have been viewed as just a way of hurrying the nation along the path it was preordained to follow anyway—an acceleration that constitutional theorists or judges have sometimes thought to be a good thing (sort of like AP classes in high schools, perhaps?).  As it becomes increasingly apparent that secularization (in the sense of a withering away of religion, at least) is not imminent after all, however, the flaws in the secularism strategy become more conspicuous.

The central problem, I think, is that it becomes increasingly obvious that the “private religion/secular government” prescription is not, as its proponents might claim, somehow outside or above the cultural fray—independent of and neutral among the various competing religious or secular orthodoxies or “comprehensive doctrines.”  Rather, the public secularism position is, while perhaps not a full-fledged “comprehensive doctrine,” still a political orthodoxy of its own—one that is consistent with some of the competing orthodoxies and incompatible with others.  Its pretensions to “neutrality” are spurious. As a possible basis for community, it is one candidate among others.  To be sure, it might be the best candidate.  But then again, it might not.

The prescription of public secularism as a basis for political community compels reflection on the problematic relationship between community and belief.   Start with the obvious:  As Toqueville observed, for a “community” to flourish, there need to be common bonds that bring citizens into a union.  These bonds can no doubt be of various sorts—economic, historical, linguistic, and so forth.  They can even be fictional. Insofar as humans are believing creatures, however, a community will necessarily adopt some stance (even if one of detached unconcern) toward the various beliefs people hold dear.

Moreover, in their consequences for community, beliefs have a sort of double-edged character or potential.  If a community associates itself with beliefs that citizens hold, it can elicit their allegiance.  But insofar as it rejects their beliefs, or associates itself with beliefs they reject, it can cause them to become disaffected or alienated.  In a pluralistic society, obviously, this dual potential is particularly challenging because any beliefs the community might affirm in order to gain the loyalty of some citizens are likely to produce alienation in others.

So, what to do?  One strategy, preferred and practiced for centuries, essentially tries to eliminate divisive creedal differences by inducing or coercing citizens to share a common religion.  Due to the failure of that strategy in post-Protestant times, contemporary communities adopt other measures.  In part, they may attempt to unite citizens on bases other than belief—commercial interests, for example.  But in view of the continuing centrality of believing to humans, communities nonetheless have to find some way of making their peace with belief.  How to do that?

In its essence, liberalism (of which modern public secularism is only one version) tries to identify what is taken to be a “second-order” set of political beliefs—in equality or liberty or human rights—around which citizens hopefully can unite, while leaving other first-order beliefs—in specific religious or antireligious doctrines, perhaps—to the private sphere.  While the strategy arguably has achieved considerable success, it also provokes serious conflicts, as we see in the nation today.

The basic difficulty, I think, is not so much that some citizens reject the liberal division of beliefs into first-order/private and second-order/communal categories.  For rhetorical purposes, advocates often accuse their opponents of doing that.  My sense, though, is that nearly all Americans accept the distinction in some form—that hardly anyone wants the government to endorse (or condemn) infant baptism or the Nicean Creed.  We are all (or nearly all) liberals now, in this country anyway, in the core sense.  But Americans differ considerably about how and where to draw the line between what is private and what is properly public.  And many doubt that “secularism” is the proper device for drawing that line.

For example, and more specifically, it seems that some Americans—millions, perhaps—believe that, as George Washington declared, “it is the duty of all nations” (notice that the duty applies to nations, not just to private individuals) “to acknowledge the providence of Almighty God, to obey His will, to be grateful for His benefits, and humbly to implore His protection and favor . . . .”⁴ They might even find themselves unable to give their full allegiance to a political community that refused to honor that duty.  Hence the national motto, “In God We Trust,” or the indignation that arises when, for example, a court orders the words “under God” to be stricken from the Pledge of Allegiance.

But other Americans, obviously, object to such expressions.  The disagreement between the two camps pervades and motivates many of the conflicts that we describe as the “culture wars.”  It is a daunting problem—the more so because we ought to be able to see, by now, that “public secularism” is not a neutral arbiter among those conflicts.  It is, rather, a banner for one camp of combatants.

III.
The Strategy of “ConstitutionalAgnosticism”

At this point, we may be able to appreciate the possibility of a different strategy for maintaining pluralistic community—one that we might simply call “constitutional agnosticism.”

This strategy grows out of the crucial fact that not everything that is affirmed by an agent—by a person, or a community—is constitutive.  This distinction, as well as the possibilities it opens up, can perhaps best be appreciated on a personal level.  We understand that a person is not identical to or constituted by his or her opinions—and a good thing, too, because otherwise, if a person held an opinion we found objectionable or obnoxious, we might have to regard the person himself as objectionable or obnoxious.  Instead we are often able to draw a distinction between the man and his beliefs, thinking, for example, “I love and respect John as a person, even though I find his religious and political views absurd.”

No doubt there are beliefs so central to a person that they become at least partially constitutive:  If the Pope were to repudiate Catholicism, or if Daniel Dennett were to become a fundamentalist Christian, we might think that these worthies were just no longer the same persons they used to be.  For the most part, though, we can distinguish between a person and his or her beliefs.  This distinction allows us to treat persons with respect even though we utterly reject their beliefs.

The same possibility is available, I suggest, with respect to communities.  A community can affirm or associate itself with various ideas or beliefs without these becoming fundamentally constitutive of the community.  As a result, it is possible to respect or profess loyalty to a community even while disagreeing with some or many of the beliefs the community, through its government(s), affirms.  Governments can express beliefs in accordance with democratic demands, thereby eliciting or solidifying the allegiance of citizens who hold such beliefs; dissenters, while less than happy with such expressions, can take comfort in the fact that the objectionable expressions are not constitutive of the community.

They can do this, at least, so long as dissenters can look to something beyond such expressions that is constitutive and that does not affirm the objectionable beliefs.  And here the agnostic Constitution serves a crucial function.  The question of what “constitutes” a community is complex, to be sure.  Still, it seems safe to say that the American Constitution is at least part of what “constitutes” the American political community—as supreme law and articles of incorporation but also as venerated symbol.  So long as the Constitution itself remains steadfastly agnostic, it will always be true that whatever expressions various governments at the local, state, or national levels may make, these are not ultimately “constitutive” of the political community.  Hence, a citizen may reject the expressions without rejecting the community itself.

So suppose, for example, that something like the national motto (“In God We Trust”) were adopted at every level of government—by Congress, by every state, and by every city and county in the land.  Citizens who are atheists would—do?—find this situation galling:  There would be no political entity in the country to which they might travel that would not affirm a belief to which they object.  Even in this lamentable (to them) situation, however, they would still be able to look to a more foundational political reality—the Constitution—in which such an objectionable belief is deliberately and conspicuously not affirmed.  And because that document and symbol—that agnostic document and symbol—is accepted as the community’s supreme and constitutive law, they could take consolation in the observation that the political community itself is not constituted by a commitment they reject.

This is not to say, of course, that such citizens will find this situation ideal—far from it.  Nor, for that matter, will the situation be ideal for more aggressively devout citizens who think that the community should not only associate itself with belief in God, but should constitute itself upon that commitment.  Just as atheists or agnostics might prefer a constitution that is not only itself agnostic but that prescribes agnosticism at every level of government, more devout citizens may embrace the view, energetically professed by some at the founding, in favor of including theistic language in the Constitution, as the Articles of Confederation had done.  And so they may support the sort of proposal that has periodically arisen in American history to amend the constitutional text by adding religious affirmations.

To alter the Constitution in either of these ways (or to so interpret it, as modern “no endorsement” jurisprudence episodically does), however, would subvert  the community-maintaining possibilities that the agnostic Constitution affords.

Conclusion

It is important to acknowledge that we have an agnostic Constitution, but equally important to recognize that we have an agnostic Constitution.  It is the Constitution that is agnostic, in other words, not politics or government.  Indeed, it is precisely the Constitution’s agnosticism that permits governments, at different levels and in different ways, to sponsor the sorts of religious expression that American governments have traditionally engaged in and that may well be important in securing what Lincoln called the “attachment” of citizens, while not making such affirmation constitutive of the political community.

In this way, the Constitution makes a valuable contribution to the project of maintaining community in a pluralistic world.  That contribution is not a panacea; it does not resolve the various conflicting views that are always a potential threat to political unity, but rather supports a strategy for negotiating with and among them.  Insofar as it is agnostic, the Constitution does not dictate any particular content to our civic creeds or affirmations.  It permits civic religion of the sort reflected in the national motto and the Pledge but does not command it—just as it permits but does not command public secularism.

Supplying the more specific substantive content of our public orthodoxies thus remains a perpetual project.  No doubt the content of our orthodoxies has varied—and will vary—from place to place and time to time.  This unsettled situation may leave theorists feeling queasy.  But it is precisely this open-endedness, I suggest, that makes the agnostic Constitution such an important contribution to the challenge of maintaining e pluribus unum.

Acknowledgments:

Copyright © 2009 New York University Law Review.

Steven D. Smith is Warren Distinguished Professor of Law at University of San Diego Law Review.

This Legal Workshop Editorial is based on the following Essay:   Steven D. Smith, Our Agnostic Constitution, 83 N.Y.U. L. REV. 120 (2008).

You respond that a war memorial is a more appropriate message for a public park than a religious monument.  The religious group catches your slip here.  They explain that the park is a traditional public forum, and that the First Amendment forbids you from excluding their speech (the monument) from that forum (the park) based on its content (a religious monument rather than a war memorial).  Incredulous, you object that this First Amendment rule applies only to temporary speech, such as a rally or movable display.  After all, if the city had to accept every monument offered by a private group, the park would soon look like a graveyard peppered with headstones.  The religious group persists.  Are they right?

Last November, the Supreme Court heard argument on this question in City of Pleasant Grove v. Summum.¹ The precise issue was whether placement of a permanent monument is part of the public’s right to use a traditional public forum.  This question falls in a gap in current public forum doctrine, and the lower courts have reached conflicting results.  While the Tenth Circuit held in City of Pleasant Grove that permanent monuments are within the public’s right to use a traditional public forum, other courts have held to the contrary.² Both of the lower court approaches ultimately prove unsatisfactory because they lack a principled basis to distinguish temporary speech from permanent monuments.  This is not surprising given that the Supreme Court’s existing public forum doctrine provides no basis for doing so.

This Essay looks outside the current public forum framework to propose a new approach built on an analogy to the real property law of easements.  Courts should treat the public’s right to use a traditional public forum as if it were a constitutional easement over government property. This Essay asserts that a permanent monument would unreasonably interfere with rights of the government and the public by indefinitely excluding both the land owner (i.e., the government) and the other easement holders (i.e., the public) from use of the occupied land.  Thus, the public does not have a right to place a permanent monument in a traditional public forum.

This Essay has four Parts.  Part I outlines the Supreme Court’s current public forum doctrine.  Part II critiques the prevailing lower court approaches to permanent monuments in traditional public forums, and finds them wanting.  Part III builds a new test—the constitutional easement approach—drawing an analogy to the real property law of easements.  Part IV then explains why the constitutional easement approach best balances the competing interests of the government and the public in a traditional public forum.

 
I.
Current Public Forum Doctrine

The Supreme Court’s First Amendment free speech analysis recognizes three types of government property: traditional public forums, designated public forums, and nonpublic forums.  Traditional public forums are “places which by long tradition or by government fiat have been devoted to assembly and debate.”³ Such forums include public streets and parks,⁴ but not locations such as airports and prisons,⁵ that lack such a tradition.  The government may not close a traditional public forum to speech.⁶ If the government limits speech based on its content, then it must show that such action is narrowly tailored to a compelling interest.⁷  If the restriction is content-neutral (e.g., limits on times, places, and manner of speech activities), the government action must be “narrowly tailored to serve a significant government interest, and leave open ample alternative channels of communication.”⁸

Government property that is not a traditional public forum is, by default, a nonpublic forum.  The government may, however, convert a nonpublic forum into a designated public forum by permitting public use for designated purposes.  For example, a public high school building is not a traditional public forum, but a school district could create one by opening the school’s gymnasium to the public on evenings and weekends.⁹  The government must intentionally open the property “for expressive use by the general public or by a particular class of speakers.”¹⁰  Allowing only selective access to the property does not create a designated public forum.¹¹

 
II.
Prevailing Approaches to Placement of Public Monuments

Because City of Pleasant Grove v. Summum is before the Supreme Court this Term, it is worth using that case to illustrate the lower court approaches to the permanent monument issue.  In 1971, the city  accepted a Ten Commandments monument donated by the local chapter of the Fraternal Order of Eagles.¹²  Twenty-two years later, members of the Summum religion requested that the city place a monument displaying the Seven Aphorisms of Summum in that same park.¹³  The city rejected the proposed Summum monument because its content was inconsistent with the park’s current use.¹⁴ Summum brought suit, and the district court denied their First Amendment claim.¹⁵

All parties and all courts to address the issue have agreed that the city park, as a whole, is a traditional public forum.¹⁶  The question, then, is whether placement of a permanent monument falls within the public’s right to use a traditional public forum.  On appeal, a panel of the Tenth Circuit held that the public does have such a right, and the full court denied Summum’s motion for rehearing en banc.  The en banc denial generated three opinions that succinctly state different approaches to the permanent monument issue: an opinion by Judge Tacha, author of the panel opinion; and two separate opinions by Judges McConnell and Lucero, who dissented from the Tenth Circuit’s denial of rehearing en banc.

 
A.     Permanent Monuments Allowed

Judge Tacha broadly defined the public’s rights in a traditional public forum, stating that any distinction between permanent and temporary monuments “lacks the support of both precedent and logic.”¹⁷ The mere fact that a public park is a traditional public forum triggers the proper First Amendment test.  Because the city concededly refused the Seven Aphorisms monument based on its content, strict scrutiny applied.  The city lost because it had not demonstrated that its asserted “interest in promoting its history” was compelling.¹⁸

There are three problems with Judge Tacha’s approach.  First, despite her claim to the contrary, logic does support a distinction between transitory and permanent speech in a traditional public forum.  A permanent display forever reduces the space available to both the city and the remainder of the public to make use of the traditional public forum.

Second, Judge Tacha’s approach forces the government into an all or nothing position.  She explains that while the public may not have a right to erect a permanent display in a park bereft of monuments, the right arises as soon as the government “permit[s] the permanent display of a private message.”¹⁹  If the government wants to deny permanent monuments based on content, its only practical option is to close its traditional public forums to permanent monuments.

Third, Judge Tacha’s approach would give the public a right to place permanent monuments in an otherwise empty traditional public forum. Under current First Amendment doctrine, the government must keep a traditional public forum open to speech activities.²⁰  If permanent displays are to be treated the same as transitory activities, then, the simple fact that a park is a traditional public forum would trigger the public’s right to place permanent monuments there.²¹

 
B.     Permanent Monuments Are Government Speech

Judge McConnell would hold that a permanent monument becomes government speech the moment that the government allows the private display onto public property.²² Thus, because the First Amendment free speech guarantee does not limit government speech,²³ the decision whether to place the monument is no longer subject to traditional public forum analysis.²⁴

There are two problems with Judge McConnell’s approach.  First, simply accepting a permanent monument does not necessarily endorse the monument’s message.  The point of placing a permanent monument (e.g., a work of art) could be to stir debate on an issue, in which case the government remains studiously agnostic towards the monument’s message. Second, because Judge McConnell’s logic does not distinguish permanent and transitory speech activities, his approach is in tension with the entire concept of a traditional public forum.  Under Judge McConnell’s approach, all speech activity in a public park would be government, not private, speech, which contradicts the very idea of a traditional public park as a place where private speakers assemble and debate.

 
C.     Changing the Forum

Judge Lucero rewrote public forum analysis by changing how courts define the forum at issue.  The prevailing approach is to define the forum as the location in question—public park, sidewalk, etc.—and then ask whether that place is a traditional public forum.  Instead of asking whether the city park was a traditional public forum (which it clearly was), Judge Lucero asked whether the requested use—”permanent monuments in the city parks”—was such a forum,²⁵ and concluded that the United States does not have a “long tradition” of allowing private parties to place monuments in public parks.

There are three problems with defining a proposed traditional public forum with reference to the requested use as well as the location.  First, the Supreme Court has never taken this approach.²⁶  Neither Supreme Court case on which Judge Lucero relied addresses a traditional public forum, such as a park or street.²⁷

Second, almost every use of a traditional public forum could be defined at such a specific level that no “long tradition” of similar use exists. For example, the government could define a forum for a political rally as “a rally in a public park that makes use of an LCD display and sound amplification equipment.”  Judge Lucero provides no rule or principle that prevents this semantic dodge.

Third, and more fundamentally, Judge Lucero’s approach conflates the categories of traditional and designated public forums.  Recall that a designated public forum is an otherwise nonpublic forum that the government has opened to specified public uses, thus, by definition, incorporating the speaker’s use of the property.²⁸ Conversely, the traditional public forum is open generally to speech activities, and so the specific use does not define the forum.  By defining the relevant forum with reference to the requested use, Judge Lucero ignores the key distinction between traditional and designated public forums.

 
III.
The Constitutional Easement Approach

Instead of further tinkering with current law, this Essay proposes a new test that looks outside the prevailing framework, drawing on an analogy to the real property law of easements. An easement confers three main rights and obligations: first, the holder of the easement has a right to use property owned by another; second, the owner of the servient land must not unreasonably interfere with the easement holder’s use; and third, the easement holder must not unreasonably interfere with use by the servient owner.²⁹  In a traditional public forum, members of the public are the easement holders, and the government is the servient owner.  The public, then, has the right to enter and use the traditional public forum, the government must not unreasonably interfere with that use, and the public must not unreasonably interfere with the government’s continued ownership.

The public’s constitutional easement is nonexclusive, meaning that it is held by multiple parties (i.e., members of the public) simultaneously.³⁰  Holders of such easements “must exercise their rights so that they do not unreasonably interfere with each other.”³¹ Courts have held that permanent structures can unreasonably interfere with a nonexclusive easement.³² The analogy to the permanent monument context is straightforward.  Members of the public simultaneously hold a constitutional easement to use a traditional public forum for assembly and debate, extending to all portions of the forum that are not reasonably used by the government. A permanent monument would exclude others from making use of a portion of the constitutional easement, thus “unreasonably interfer[ing]” with use of the park by other members of the public.

Placement of a permanent monument, then, is not part of the public’s constitutional easement over a traditional public forum.  Further, “permanent monuments in the public park” would not be a designated public forum because the government gives private monuments selective—not general—access to the park.³³  This would leave the right to place a monument in the category of the public’s right to use a nonpublic forum, wherein speech regulations must be viewpoint neutral and reasonable.  Limits on placement of public monuments will surely be reasonable, in that they “preserve the property under its control for the use to which it is lawfully dedicated.”³⁴

The second requirement—that the regulation be viewpoint neutral—places greater limits on the government.  Viewpoint neutrality is violated when the government “denies access to a speaker solely to suppress the point of view he espouses on an otherwise includible subject.”³⁵ A local government could plausibly claim that politically charged or inflammatory permanent monuments would make the park less inviting for its intended use by the entire community, thus working an indefinite exclusion.  The government’s purpose, then, would be to maximize use of the public park, and not to suppress the speaker’s viewpoint.  The outcome of the Summum case would depend on the government’s reason for excluding the monument, which the Tenth Circuit did not decide.³⁶

 
IV.
Why Adopt the Constitutional Easement Approach?

The constitutional easement approach has rhetorical, functional, and doctrinal support in the Supreme Court’s public forum decisions.  Rhetorically, the Court already speaks the language of easments in this context, consistently describing traditional public forums as subject to a right of “use of the public.”  Functionally, the traditional public forum balances the competing rights of a land owner (the government) whose real property (the traditional public forum) is burdened by the right of third parties (the public) to use the property.  This is the same balance sought by the law of easements.  And doctrinally, the constitutional easement approach makes sense because the Court has previously adapted its public forum doctrine to specific government functions.  For example, when the government acts as a public broadcaster³⁷ or a patron of the arts,³⁸ the Court has tailored its analysis to those roles. Similarly, the constitutional easement approach tailors First Amendment doctrine to the government’s rights and obligations as the landowner of a traditional public forum.

 
V.
Conclusion

Lower courts have bent and stretched the existing public forum rules in their attempt to solve the puzzle of permanent monuments, but without success.  By thinking of the public’s right to use a traditional public forum as a constitutional easement, courts can now solve the puzzle: a permanent monument would be an exclusive use of the forum that unreasonably interferes with the government’s ownership and the public’s right to use.  Thus, such monuments are not within the public’s right to use public parks, streets, and other traditional public forums.

Acknowledgments:

Copyright © 2009 Northwestern University Law Review.

Paul E. McGreal is Professor of Law, Southern Illinois University School of Law.

Thanks to Peter Alexander, Cheryl Anderson, Keith Beyler, Cindy Buys, Brannon Denning, William Drennan, Lenny Gross, Sue Liemer, Hokulei Lindsey, Alice Noble-Allgire, Rocky Rhodes, and Mark Schultz for comments on prior drafts. I also received helpful feedback at a Southern Illinois University School of Law Faculty Scholarship Workshop. All errors that remain are mine.

This Editorial is based on the following Essay: Paul E. McGreal, The Case for a Constitutional Easement Approach to Permanent Monuments in Traditional Public Forums, 103 NW. U. L. REV. COLLOQUY 185 (2008).
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