Another comment on Pleasant Grove City v. Summum: I found it remarkable that a panel consisting of Judges Tacha, Ebel and Kane (Tacha authoring) would be reversed by a unanimous Supreme Court. The Supreme Court sidestepped the Tenth Circuit's holding that the City was engaging in content-based discrimination against Summum's religious speech. In the Supreme Court's view, placing a privately funded monument on public property transformed the private speech into government speech, and, as Justice Alito wrote, a government entity can say what it wishes. The Tenth Circuit's opinion focused on a traditional public-forum analysis. The Supreme Court rejected this analysis as "out of place" where a public park could accommodate only a limited number of monuments.
The Tenth Circuit had denied rehearing en banc and Judge McConnell dissented from this denial urging the "government speech" rationale adopted by the Supreme Court. Score one for Judge McConnell.