The Tenth Circuit handed down two opinions last month (Summum v. Duchesne City, No. 05-4162 and Summum v. Pleasant Grove City, No. 06-4057), upholding the right of the Summum religion to place monuments bearing the Seven Aphorisms of Summum in city parks that also have private Ten Commandments monuments. Summum, a religion founded in Utah in 1975, has successfully litigated similar issues in the Tenth Circuit before in Summum v. Callaghan, No. 94-4191, and Summum v. City of Ogden, No. 01-4022.
In Summum v. Pleasant Grove, the Tenth Circuit reversed the District Court’s denial of a preliminary injunction, and ordered that Summum be allowed to place its monument in the Pleasant Grove city park pending the outcome of the litigation. The District Court had denied Summum’s motion in an oral ruling, and the Tenth Circuit held that the District Court had applied an incorrect legal standard by analyzing the city’s actions using the standards for a non-public forum rather than a public forum. However, rather than remanding the case for analysis under the correct legal standard, the Tenth Circuit found the record sufficiently developed to determine that a preliminary injunction would be appropriate.
In Summum v. Duchesne City, the city had attempted to remove its Ten Commandments monument from the park by conveying that portion of the park on which the monument rested to private parties in two questionable transactions (in the first of these, a transfer to the Lions Club, the Mayor, who was also president of the local chapter of the Lions Club, signed the contract both on behalf of the city and on behalf of the Lions Club). The Tenth Circuit reversed a grant of summary judgment for the city on Summum’s request for injunctive relief allowing it to place its monument in the city park. The Tenth Circuit held that the District Court had failed to properly determine either the validity of the purported sales or whether, even if a valid sale had taken place, the plot of land with the Ten Commandments monument continued to be part of a public forum.
In both cases, the Tenth Circuit emphasizes that a city park is a traditional public forum. It sent a clear warning that cities which allow only certain private groups to erect monuments in city parks must be prepared to meet strict scrutiny (both legally and figuratively) from the Tenth Circuit.