In an unusual order, the Tenth Circuit divided equally in a decision over whether to rehear a case en banc. The equally-divided order means the request to rehear the case was denied and the panel opinion was affirmed. The Court's specific holding will be addressed below, but a bit of background appears to be in order. The panel opinion involved a request by "Summum" -- a religious organization -- to post a monument containing the "Seven Aphorisms of Summum" in a city park. The panel's opinion does not provide any detail regarding the tenets of Summum, but one website indicates that the philosophy/religion stems from its founder's (Claude "Corky" Nowell) encounter with beings he describes as "Summa Individuals." According to Nowell, these beings "presented him with concepts regarding the nature of creation, concepts that have always existed and are continually reintroduced to humankind by advanced beings who work along the pathways of creation." The Seven Summum Principles are known as Pscychokinesis, Correspondence, Vibration, Opposition, Rhythm, Cause and Effect, and Gender.
Well, among other things, the followers of Summum also believe that Moses was given both a "lower" and "higher" knowlege from a divine being. The lower knowledge refers to the more widely known "Ten Commandments," while the higher knowledge refers to the "Seven Aphorisms." Apparently, when Moses first descended from Mount Sinai, he had with him the higher law -- a law the Israelites were unable to understand because of their under-developed condition. Moses therefore returned to Mount Sinai and descended with the lower law, which was much easier for the Israelites to understand. The Summum website indicates that "many people are not ready to understand the aphorisms carved on those first tablets."
The panel's decision involves a free speech issue only -- whether a City violated the Summans' free speech rights when it refused it the opportunity to post the Seven Aphorisms in a city park, when the City had otherwise allowed the posting of the Ten Commandments.
The Court was forced to address whether the city park was a "public forum" for purposes of free speech analysis. Following an exhaustive analysis, the Court found that the city park was a "traditional public forum," and, therefore, restrictions on speech were subject to strict scrutiny and "content-based restrictions are presumptively invalid." Only if the government shows that the restriction is necessary to "serve a compelling state interest and that it is narrowly drawn to achieve that end" will it survive strict scrutiny." The city had failed to justify the restriction under that standard. The city's desire to "promote its own history" was insufficient -- the city can promote that goal by a number of means, but not by restricting access to a public forum traditionally committed to public debate and the free exchange of ideas.
The City sought rehearing en banc, which was denied on an equally divided vote. Judge McConnell, who was widely regarded as a potential Supreme Court candidate upon the death of Chief Justice Rehnquist and resignation of Justice O'Connor, dissented from the denial of rehearing en banc. He stated that "neither the logic nor the language of these Supreme Court decisions suggests that city parks must be open to the erection of fixed and permanent monuments expressing the sentiments of private parties. By their policies or actions, governments may create designated public forums with respect to fixed monuments, but -- contrary to these opinions -- the mere status of the property as a park does not make it so." Judge Lucero likewise dissented, but on different grounds. He argued that the park was a "limited public forum." In those situations, local governments are permitted to make "content-based determinations about what monuments to allow in such space, but may not discriminate as to viewpoint."
Two other recent appointees to the Court -- Judges Gorusch and Holmes -- also would have reheard the case en banc.
The issues at stake apparently caught the Supreme Court's eye, because they have elected to review the Tenth Circuit's opinion, granting certiorari on March 31, 2008. The Court will hear oral arguments on the case on November 12, 2008. More information on the case can be found here and here.
