Law Review: The Endorsement Test after Summum

Mary Jean Dolan, Government Identity Messages and Religion: The Endorsement Test after Summum (February 5, 2010). Available at SSRN:

This Article offers an in-depth analysis of the opinions in Pleasant Grove v. Summum. It explores the distinctions between the ‘government speech doctrine’ – which operates as a defense to a Free Speech Clause claim – and ‘government speech’ as it has been used in Establishment Clause cases. It serves a valuable function by addressing concerns that the decision has eliminated the Establishment Clause endorsement test, or that it dangerously allows government to convert any and all private speech to its own, thus deflecting free speech claims. My interpretation shows that the Summum decision is multi-faceted and contextual; it relies on government’s expressive intent, an inherently communicative medium, and viewers’ reasonable attributions regarding monument speech. Justice Alito’s exposition on the unfettered indeterminacy of monuments’ content is either misunderstood or renders his opinion internally inconsistent.

Summum should serve to heighten scrutiny in the Court’s Establishment Clause analysis of governments’ religious displays. The case expanded the government speech doctrine beyond specific policies dictated by government-funded programs, and labeled donated monuments as “government identity speech.” Doing so unequivocally erased the diffusing role of the donor, and will exacerbate the perception of preference when government decisions involve religious expression. This Article proposes a balanced solution, which calls governments to a new level of transparency and requires clear display of their history-based rationales. Using social meaning theory and considering alternative approaches, the Article illustrates my proposal using the examples of Eagles-donated Ten Commandments monuments and the Salazar v. Buono story.