Ted Olsen has this commentary in Christianity Today discussing yesterday’s oral arguments in the Summon case. He writes:
It sounds like a big church-state case, but whatever the Supreme Court decides, it probably won’t affect church-state issues all that much. Both sides agree that this is really a free-speech case, not a religion case. Then again, a huge number of the oral arguments this morning focused on whether the Ten Commandments display itself violates the First Amendment’s Establishment Clause, not whether leaving out the Summum display violates the free-speech clause . . .
In addition to being represented by the American Center for Law and Justice (ACLJ), Pleasant Grove City had most of the Christian legal firms in its corner with amicus briefs: Alliance Defense Fund, Family Research Council, Becket Fund for Religious Liberty, and Liberty Counsel. (The City also got an amicus brief from former Alabama Chief Justice Roy Moore, the “Ten Commandments Judge” from a few years back.)
Most of these firms have long argued on behalf of religious groups seeking access to public forums. Jay Sekulow’s ACLJ, for example, even supported a student’s right to display a “Bong Hits 4 Jesus” banner at a public event.
Chief Justice John Roberts picked up on this and asked the first question of today’s arguments:
Mr. Sekulow, you’re really just picking your poison, aren’t you? I mean, the more you say that the monument is Government speech to get out of the first, free speech — the Free Speech Clause, the more it seems to me you’re walking into a trap under the Establishment Clause. If it’s Government speech, it may not present a free speech problem, but what is the Government doing speaking — supporting the Ten Commandments? . . .
