The Supreme Court a couple days ago decided on a case in which Pleasant Grove City, Utah, declined to erect a monument on public space to the Summum religion, even though a monument to the Ten Commandments, among others, exists there (see full decision here). The Summun church wanted to erect a statue to the Seven Aphorisms. The city declined, stating that existing monuments were either fashioned to the history of the city or donated by people with strong historical ties to the city. Of note, the Summun adherents sued under the Free Speech clause of the First Amendment, curiously not under the Establishment Clause.
The Court unanimously agreed, however, there were multiple concurring opinions; basically, the Justices were split on their approach but unified in the basic decision, even with differing understandings of the scope and consequences of the decision. The Summun church argued that the space was a public forum, and they had their right to free speech; if the city took one monument with religious implications then the city must include theirs. Writing the majority opinion, however, Justice Alito stated that free speech pertains to speeches and leaflets in the public forum. Alito stated that the Summum church's free speech rights were not violated when the city rejected the request to erect a monument. As such, monuments on public property represent government speech, presuming, of course, that the Ten Commandments can be government speech without conveying a religious message. And, according to Alito, the meaning of a monument changes over time.
Several of the concurring decisions touched on the Establishment Clause:
The concurrences offered varying views about whether the decision foreclosed or left open a separate challenge to the Ten Commandments monument under the Establishment Clause.Justices Scalia and Thomas believed that this decision forclosed any challenge with the Establishment Clause, citing Van Orden v. Perry in which many monuments on public land, even if one is religious, does not mean a governmental endorsement of religion. Justice Souter was not so sure, and said it would behoove the city to erect other monuments to not present the perception that the city was establishing religion.
The Baptist Joint Committee, a leading organization on the Seperation of Church and State, argues that the government cannot choose a favored religion and then erect a monument with that religion's precepts. They assert that the case is still open to an Establishment Clause challenge, and they point out that the Summun attorney was ecstatic that the Court handed them a new constitutional challenge on "a silver platter."
Why this wasn't initially handled under the Establishment Clause is beyond me, but it looks like the concurrences may give a small window into how the Salazar v. Buono case will be handled.