Analysis: Pondering the “tyranny of labels”
Analysis
If a case does not fit within a constitutional pigeonhole, is there no other way to define it so that a legal dispute can be decided? That was the lingering question Wednesday as the Supreme Court tried to hack its way through a thicket of constitutional labels, with the legal fate of monuments donated by private groups and placed in government-owned parks hanging in the balance. The case of Pleasant Grove City v. Summum (07-665) seems to have much to do with “public forum,” “limited public forum,” “government speech,” “private speech,” and “viewpoint discrimination,” among other categories. But the Court’s members seemed unpersuaded that any of them is just right for this case. The Justices weren’t even sure which part of the First Amendment is really at issue — free speech, or church-state separation.
Justice Anthony M. Kennedy spoke disparagingly, saying “this case is an example of the tyranny of labels.” He also wondered somewhat forlornly: “Does the law always require us to adopt an all-or-nothing position?….Do we have to decide this case that it’s all or nothing?” Justice Stephen G. Breyer, on the same theme, asked: “Are we bound in these cases to apply what I think of as an artificial kind of conceptual framework or are we free to ask what seems to me to be at the heart of the matter?”
Justice David H. Souter suggested that “the tough issue here” is that “there is in fact a mixture, that it is government [speech] and private [speech]…We haven’t had this kind of a challenge before.”
Part — perhaps most — of the Court’s difficulty in pursuing a flexible basis for deciding the case was that standing before the Court were three lawyers each of whom argued for a simple, mainly label-driven outcome. One said mere acceptance of a monument, whatever its message, turns it into “government speech.” One said the choice of monuments is simply what “government as curator” does, as in selecting paintings for a museum. And one said that a public park is a “public forum,” so monuments can’t be accepted or rejected for display there on the basis of what they say.
Although the Court did not appear convinced that it could rely on such simplicity, Justice Antonin Scalia provided a reminder that some ground of decision had to be found. “We need a clear rule here,” he said. “We can’t expect the courts or the cities for that matter to investigate in every case what the degree of the Government’s involvement [is].” (It was plain that Justice Scalia, for himself at least, would be content with a decision that government may explicitly embrace a religious monument without fretting about either part of the First Amendment.)
