                  This opinion is subject to revision before final
                        publication in the Pacific Reporter

                                   2015 UT 31

                                      IN THE

          S UPREME C OURT OF THE S TATE OF U TAH
               SUMMUM , a Corporation Sole and Church,
                             Appellant,
                                 v.
            PLEASANT GROVE CITY, a municipal corporation,1
                             Appellees.

                                No. 20120717
                            Filed January 30, 2015

                      Fourth District, Provo Dep’t
                     The Honorable Fred D. Howard
                            No. 110401502

                                   Attorneys:
          Brian M. Barnard, Stewart Gollan, Provo, for appellant
      Edward L. White III, Francis J. Manion, Geoffrey Surtees,
           Erik M. Zimmerman, Ann Arbor, Michigan,
         Gregory N. Hoole, Salt Lake City, for appellees

  JUSTICE DURHAM authored the opinion of the Court, in which
  ASSOCIATE CHIEF JUSTICE NEHRING and JUSTICE PARRISH joined.
      JUSTICE LEE filed an opinion concurring in part and in the
         judgment, in which CHIEF JUSTICE DURRANT joined.

JUSTICE DURHAM , opinion of the Court:
                              INTRODUCTION
    ¶1 We are asked to decide whether the religious liberty clause
of the Utah Constitution requires a city to install a proposed
religious monument in a public park where a Ten Commandments
monument is already situated. We hold that it does not. Because we
have not been asked to do so, we do not decide whether the Ten
  1
      B    CALL, Mayor and former City Council Member, JIM
          RUCE
DANKLEF, former Mayor, MIKE DANIELS, former Mayor, LEE JENSEN ,
City Council Member, CINDY BOYD , City Council Member, JEFF
WILSON, City Council Member, VAL DANKLEF, City Council Member,
KIMBERLY ROBINSON , City Council Member, G. KEITH CORRY, former
City Council Member, MARK ATWOOD , former City Council
Member, SCOTT DARRINGTON , City Administrator, and FRANK MILLS,
former City Administrator, Appellees.
                 SUMMUM v. PLEASANT GROVE CITY
                     Opinion of the Court

Commandments monument at issue in this case is a prohibited use
of public money or property for “religious worship, exercise or
instruction” under article I, section 4 of the Utah Constitution.
Instead, we conclude that the remedy the plaintiff seeks—the
installation of a second monument—is unavailable as a matter of
constitutional law.
                          BACKGROUND
    ¶2 Since 1971, a monument displaying a representation of the
Ten Commandments tablets, including the full text, has stood in
Pioneer Park, a city park owned and maintained by Pleasant Grove
City. The Ten Commandments monument was donated to Pleasant
Grove by a local chapter of the Fraternal Order of Eagles. The park
also contains several structures and monuments that Pleasant Grove
has collected or accepted from various private donors over the years,
including pioneer era buildings, a September 11th memorial, and a
rose garden.
    ¶3 Summum, is a corporation sole and church. Established in
Salt Lake City in 1975, the religion, according to its tenets, is founded
on teachings that predate the ancient Egyptians. These teachings are
summarized in the Seven Aphorisms, which Summum adherents
believe to be complementary to the Ten Commandments. In 2003,
the President of Summum offered to donate and erect a Seven
Aphorisms monument in Pioneer Park that would be similar in size
and nature to the existing Ten Commandments monument.
    ¶4 Pleasant Grove declined Summum’s offer, explaining that
it had an established practice of accepting only monuments that
were either (1) directly related to the history of the city or
(2) donated by groups with long-standing ties to the city. About nine
months later, the city passed a resolution codifying the criteria to be
considered when deciding whether to place a privately donated
monument on public property:
         1. The item must directly relate to the history of
         Pleasant Grove and have historical relevance to the
         community. . . . 2. It is being donated by an
         established Pleasant Grove civic organization with
         strong ties to the community; or, 3. The donors
         have a historical connection with Pleasant Grove
         City; and 4. Placement does not create any safety
         hazards; and 5. It is not obscene.
   ¶5 Summum sued Pleasant Grove in federal court, alleging that
the city’s decision not to accept the proposed Seven Aphorisms


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                        Opinion of the Court

monument violated the Free Speech and Establishment clauses of the
federal Constitution. In Pleasant Grove City, Utah v. Summum, 555
U.S. 460, 481 (2009), the United States Supreme Court rejected
Summum’s free speech claim, holding that the placement of a
monument on public property was a form of government speech
that is not regulated by the Free Speech Clause. Subsequently, the
federal district court rejected Summum’s federal Establishment
Clause claim. Summum v. Pleasant Grove City, No. 2:05CV638 DAK,
2010 WL 2330336, at *3 (D. Utah June 3, 2010).
    ¶6 Summum then filed a complaint in state court, alleging that
Pleasant Grove had violated the religious liberty clause of the Utah
Constitution. The complaint sought an injunction requiring Pleasant
Grove to erect and permanently display the proposed Seven
Aphorisms monument. Both Summum and Pleasant Grove moved
for summary judgment on Summum’s complaint. The district court
concluded that Pleasant Grove’s decision not to install the
monument did not violate the Utah Constitution and granted
summary judgment in favor of the city. Summum appealed. We
review the district court’s interpretation of the Utah Constitution for
correctness. Snyder v. Murray City Corp., 2003 UT 13, ¶ 17, 73 P.3d
325.
                             ANALYSIS
                                   I
    ¶7 Article I, section 4 of the Utah Constitution, Utah’s religious
liberty clause, contains provisions that both protect the free exercise
of religion and prohibit the government from promoting religion.
See Soc’y of Separationists, Inc. v. Whitehead, 870 P.2d 916, 935 (Utah
1993). Summum relies on the provision of the religious liberty clause
prohibiting financial support of religion: “No public money or
property shall be appropriated for or applied to any religious
worship, exercise or instruction . . . .” UTAH CONST . art. I, § 4.
     ¶8 We interpreted this provision in the context of prayers
offered by private individuals at the commencement of city council
meetings and developed a two-step analysis to determine the
constitutionality of this practice. First, we addressed whether prayer
offered in a public meeting of a government body constituted
“religious worship, exercise or instruction.” Soc’y of Separationists,
870 P.2d at 930; see also Snyder v. Murray City Corp., 2003 UT 13, ¶ 21,
73 P.3d 325. Having concluded that the prayerful address of a deity
is a religious exercise, we then examined whether arranging for and
permitting prayer at a city council meeting amounted to an
unconstitutional appropriation of public money or property to this

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                 SUMMUM v. PLEASANT GROVE CITY
                     Opinion of the Court

religious exercise. Soc’y of Separationists, 870 P.2d at 932. Under this
second step, we adopted a neutrality test, reasoning that when the
government provides money or property in an impartial manner,
“any benefit flowing to religious worship, exercise, or instruction
can be fairly characterized as indirect because the benefit flows to all
those who are beneficiaries of the use of government money or
property, which may include, but is not limited to, those engaged in
religious worship, exercise, or instruction.” Id. at 937. The provision
of money or property to religious exercise is indirect, and therefore
constitutional, if (1) “the money or property [is] provided on a
nondiscriminatory basis” and (2) “the public money or property [is]
equally accessible to all.” Id. at 938; accord Snyder, 2003 UT 13, ¶ 20.
    ¶9 Citing this two-step test from Society of Separationists and
Snyder, Summum argues that Pleasant Grove’s acceptance of the Ten
Commandments monument, but subsequent rejection of a Seven
Aphorisms monument, violated the constitutional prohibition
against the appropriation of public money for religious exercise.
Under the first step, Summum asserts that the display of the Ten
Commandments monument in a public park constitutes “religious
worship, exercise or instruction.” Summum then argues that under
the second step the allocation of public property for the monument
was not neutral because Pleasant Grove subsequently rejected its
offer to display its own religious monument. Notably, Summum
does not seek the removal of the Ten Commandments monument
because of this alleged constitutional violation. Instead, Summum
requests an injunction requiring Pleasant Grove to display its own
proposed monument.
    ¶10 We do not address Summum’s first contention that the Ten
Commandments monument amounts to “religious worship, exercise
or instruction.”2 Instead we affirm the district court’s grant of
summary judgment in favor of Pleasant Grove on the ground that,
regardless of whether the Ten Commandments monument
constitutes religious worship, exercise, or instruction, the religious
liberty clause of the Utah Constitution does not require a court to

  2
      We note that Pleasant Grove argues that the Ten
Commandments monument, viewed in the context of the other
historical displays within Pioneer Park, does not convey a religious
message, but rather a historical message about the importance of this
biblical scripture to Pleasant Grove’s founding citizens. See Thomas
v. Daughters of Utah Pioneers, 197 P.2d 477, 488–90 (Utah 1948) (the
impartial display of artifacts from Mormon pioneers in a state-
funded museum did not violate Utah’s religious liberty clause)

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                       Opinion of the Court

force Pleasant Grove to permanently display a similar Seven
Aphorisms monument. We come to this conclusion for two reasons.
    ¶11 First, an injunction requiring Pleasant Grove to display the
Seven Aphorisms monument would not satisfy the neutrality
requirement articulated in Society of Separationists and Snyder.
Assuming that the Ten Commandments monument amounts to
religious exercise or instruction, requiring Pleasant Grove to erect a
second religious monument would not render the allocation of
public property and money to the two monuments neutral. The
citizens of Pleasant Grove, and Utah in general, undoubtedly
espouse a broad variety of religious views, including adherence to
one of multiple religious denominations, agnosticism, or atheism.
Displaying monuments that communicate the beliefs of only two of
these viewpoints would not amount to an impartial distribution of
public property among the spectrum of religious views held by Utah
citizens. And because there is a finite amount of space in Pioneer
Park, allowing all interested groups to install their own religious or
antireligious monuments in the park would be unworkable. See
Pleasant Grove City, Utah v. Summum, 555 U.S. 460, 479 (2009) (“A
public park, over the years, can provide a soapbox for a very large
number of orators—often, for all who want to speak—but it is hard
to imagine how a public park could be opened up for the installation
of permanent monuments by every person or group wishing to
engage in that form of expression.”). Indeed, ordering Pleasant
Grove to allocate public property towards a monument Summum
concedes to be religious in nature would directly contradict the
prohibition contained in article I, section 4.
    ¶12 Second, we hold that the neutrality test we adopted in the
context of prayers offered during government meetings does not
apply to public monuments. Because the allocation of public money
or property to a permanent religious monument is per se not
neutral, the appropriate remedy for a monument constituting
“religious worship, exercise or instruction” would not be the forced
installation of a second monument.
   ¶13 The reasoning behind the adoption of the neutrality test in
Society of Separationists demonstrates why this test does not apply to
monuments. In that case, we held that prayers offered during city
council meetings utilized public property because the process of
permitting individuals to offer them used “city facilities, equipment,
resources, and employee time.” Soc’y of Separationists, 870 P.2d at
932. We reasoned, however, that if the Utah Constitution required
an absolute bar of religious expression by private individuals on
public property,

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                 SUMMUM v. PLEASANT GROVE CITY
                     Opinion of the Court

      it would mean that while the government could allow
      a political group to use a public park for a rally, it could
      not allow a religious group to use the park for a revival.
      Similarly, if an open microphone and soapbox were set
      up outside city hall for the use of any individual who
      wished to speak, the government could not permit its
      use by those who wanted to pray, conduct an
      impromptu religious service, or proselytize others, but
      could permit neo-Nazis, the Ku Klux Klan, the John
      Birch Society, the Society of Separationists, or members
      of the Democratic or Republican Party to speak.
Id. at 934. We rejected such an absolutist interpretation because it
“would evidence an affirmative hostility toward religion,” which
would contradict other provisions of the federal and Utah
Constitutions that protect religious expression and free speech. Id.
at 934–35. Instead, we adopted a neutrality test that permitted the
use of public property in support of private religious expression so
long as government benefits are “provided on a nondiscriminatory
basis” and are “equally accessible to all.” Id. at 938.
    ¶14 Thus we adopted the neutrality test in the specific context
of transient religious expression by private individuals on public
property. In the examples we cited in Society of Separationists, the
public property at issue—public buildings and equipment, such as
a microphone and sound system—was itself neutral. So long as
access to these public resources is provided in an impartial manner,
private use of public property to express religious sentiments does
not violate the religious liberty clause of the Utah Constitution. If,
for example, Pioneer Park had a pavilion available for group
reservations, Pleasant Grove could allow a Christian church group
to use the pavilion for an ice cream social where prayers would be
offered and religious sentiments expressed, so long as the city also
allowed equal access to the pavilion for an atheist barbeque or a
Buddhist potluck dinner.
    ¶15 The Ten Commandments monument in this case, however,
is fundamentally different from a park pavilion; it is not a neutral
conduit for private expression. Instead, the monument is itself
government speech. Pleasant Grove, 555 U.S. at 470. When Pleasant
Grove accepted the donated monument, it adopted the message
conveyed by the monument as its own. Id. at 470–72. Because the
government property at issue in this case is itself the message, it
cannot be allocated in an impartial manner since monuments



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                        Opinion of the Court

“monopolize the use of the land on which they stand and interfere
permanently with other uses of public space.”3 Id. at 479.
    ¶16 Therefore the second step of the analysis we applied in
Society of Separationists and Snyder—the neutrality test—has no
application in the context of government monuments. The only
relevant question under article I, section 4’s prohibition against the
use of public money or property for religious purposes is whether
a monument constitutes “religious worship, exercise or instruction.”
We do not reach that question, however, because Summum seeks a
remedy that we may not constitutionally grant.
    ¶17 In this case, Summum attempts to use the neutrality test as
a tool to facilitate the placement of its own proposed monument in
Pioneer Park. It argues that the district court should order the
installation of a Seven Aphorisms monument in order to establish an
impartial allocation of public property towards religious expression
in the park. But because the neutrality test does not apply in the
context of public monuments, this tool is unavailable to Summum.
We therefore affirm the summary judgment below.
                                   II
    ¶18 This opinion does not foreclose the possibility of adopting
a context-dependant approach to determine whether a public
monument constitutes an impermissible use of public property for
“religious worship, exercise or instruction” under the first step of the
Society of Separationists test. The U.S. Supreme Court has employed
such a context-driven approach when determining whether the
Establishment Clause of the federal Constitution prohibits
government holiday displays and monuments that constitute
“government endorsement of religion.” Cnty. of Allegheny v. ACLU
Greater Pittsburgh Chapter, 492 U.S. 573, 601 (1989). In applying this
endorsement test, the Court has examined the context of a particular
holiday display or public monument to determine the message
conveyed by the display or monument in question. McCreary Cnty.,
Ky. v. ACLU of Ky., 545 U.S. 844, 867–68, 874 (2005) (constitutionality
of a Ten Commandments monument depends upon the context in
which the monument is displayed); Cnty. of Allegheny, 492 U.S. at 595
(opinion of Blackmun, J.) (“[T]he question is what viewers may fairly
understand to be the purpose of the display. That inquiry, of
necessity, turns upon the context in which the contested object
  3
     One could imagine, of course, a monument designed to permit
citizens to post temporary messages for public consumption. See
Pleasant Grove, 555 U.S. at 480. In that theoretical situation, the
neutrality test might apply.

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                 SUMMUM v. PLEASANT GROVE CITY
        JUSTICE LEE, concurring in part and in the judgment

appears . . . .” (citation omitted) (internal quotation marks omitted)).
In other words, the Supreme Court has looked to context to
determine whether the message conveyed is a permissible secular
communication or a prohibited endorsement of religion. Compare
Cnty. of Allegheny, 492 U.S. at 598 (“[T]he effect of a crèche display
turns on its setting. Here, . . . nothing in the context of the display
detracts from the crèche’s religious message.”), with id. at 620–21
(opinion of Blackmun, J.) (the use of a menorah as part of a larger
holiday display did “not have an effect of endorsing religious
faith”).
    ¶19 The text and history of Utah’s religious liberty clause differs
significantly from that of the Endorsement Clause, and we have
charted our own course in interpreting this clause of the Utah
Constitution. See Soc’y of Separationists, Inc. v. Whitehead, 870 P.2d
916, 940 (Utah 1993). But that does not mean that the context in
which a particular monument is displayed does not play a similar
role in determining whether the monument conveys an
impermissible message. Indeed, this court has implied that context
is an important consideration when it held that the impartial display
of artifacts from Mormon pioneers in a state-funded museum did
not violate the Utah Constitution’s religious liberty clause. Thomas
v. Daughters of Utah Pioneers, 197 P.2d 477, 488–90 (Utah 1948); see also
Lynch v. Donnelly, 465 U.S. 668, 692 (1984) (O’Connor, J., concurring)
(“[A] typical museum setting, though not neutralizing the religious
content of a religious painting, negates any message of endorsement
of that content.”).
    ¶20 Any examination of the context of a public monument to
determine what the public would understand the message conveyed
by the monument to be, however, would be undertaken under the
first step of the Society of Separationists test. This first step inquires
whether a challenged monument or practice “constitutes religious
worship, exercise or instruction.” Soc’y of Separationists, 870 P.2d at
930 (internal quotation marks omitted). We need not, and do not,
engage in such an analysis in relation to the Ten Commandments
monument situated in Pioneer Park in this case. Supra ¶ 10. Thus,
our holding that the second step of the Society of Separationists test
does not apply to monuments has no bearing on the question of how
courts should determine what the message conveyed by a
challenged monument is.

JUSTICE LEE, concurring in part and concurring in the judgment:
  ¶21 I concur in paragraphs 1 through 11 of the majority
opinion, and also in the judgment affirming the district court’s

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        JUSTICE LEE, concurring in part and in the judgment

summary dismissal of the complaint in this case. I write separately,
however, because I disagree with the analysis in the balance of the
court’s opinion, which strikes me as internally inconsistent and
potentially confusing.
   ¶22 Summum asserts a right under article I, section 4 of the
Utah Constitution to have its “Seven Aphorisms” monument
displayed in Pleasant Grove City’s Pioneer Park. Because that park
already includes a Ten Commandments monument that Summum
views as an item of “religious worship, exercise or instruction”
under article I, section 4, Summum asserts a right to add its own
parallel item to the City’s monuments in Pioneer Park. And in
support of this claim Summum invokes the neutrality test set forth
in Society of Separationists, Inc. v. Whitehead, 870 P.2d 916 (Utah 1993).
   ¶23 I agree with the majority that this claim fails on the
threshold ground that “an injunction requiring Pleasant Grove to
display the Seven Aphorisms monument would not satisfy the
neutrality requirement articulated in Society of Separationists,” in that
“a second religious monument would not render the allocation of
public property and money to the two monuments neutral.” Supra
¶ 11. Given that “[t]he citizens of Pleasant Grove, and Utah in
general, undoubtedly espouse a broad variety of religious views,
including adherence to one of multiple religious denominations,
agnosticism, or atheism,” there is no basis for concluding that a mere
two monuments (Ten Commandments and Seven Aphorisms)
would render “neutral” the government’s use of public money or
property. Supra ¶ 11.
  ¶24 That is all we need to say to decide this case. We need not,
and in my view we should not, proffer a view on the “second”
ground articulated by the majority for its holding—that “the
neutrality test we adopted in the context of prayers offered during
governmental meetings” could never be applied in a manner
upholding religiously oriented “public monuments.” Supra ¶ 12. The
applicability of the Society of Separationists neutrality test is not one
we need to reach because Summum’s claim fails on the threshold
ground that it has sought a remedy that is unavailable to it. And the
majority’s analysis on this point is internally inconsistent and
potentially confusing.
   ¶25 The internal inconsistency is in (a) the opinion’s assertion
(in Part I) that the Society of Separationists’ neutrality test “does not
apply to public monuments,” supra ¶ 12; and (b) the concession (in
Part II) that a religious monument could be upheld if in context it
would not be perceived as “religious worship, exercise, or


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                 SUMMUM v. PLEASANT GROVE CITY
        JUSTICE LEE, concurring in part and in the judgment

instruction,” supra ¶¶ 18–21. I agree with the latter concession, as
there is good reason to expect that a monument could satisfy
constitutional scrutiny under Society of Separationists if it were placed
in a neutral setting alongside a wide array of other monuments.1 But
the court’s ultimate concession in Part II undercuts the earlier
conclusion in Part I.
   ¶26 That gives rise to the potential for confusion in the court’s
opinion as written. In light of the ultimate concession (in Part II) that
the Society of Separationists test could apply in a manner upholding
the use of government funds on a religious monument, the
majority’s assertions about the inapplicability of the test (in Part I)
could mislead litigants and judges in future cases. If read out of
context and taken at face value, the court’s general statements that
Society of Separationists “does not apply to monuments” have a
significant potential to confuse. See Supra ¶ 12
   ¶27 The majority’s response to this problem is the assertion
that the discussion in Part I of its opinion concerns only the “second
step” of the Society of Separationists test (whether the government
expenditures in question are “neutral”), and the insistence that the
“holding” that that “step” of the test “does not apply to monuments
has no bearing on the question of how courts should determine what
the message conveyed by a challenged monument is.” Supra ¶ 20.
But that explanation does not solve the problem; it simply highlights
the fact that the court’s proffered “second” basis for its
holding—that the Society of Separationists test “does not apply to
public monuments,” supra ¶ 12—is not in fact a separate ground for
the court’s holding. Step two of the Society of Separationists test has
no independent significance. If a religiously oriented monument
would not qualify as “religious worship, exercise or instruction” as
viewed in its real-world context (step one), then it matters not at all
whether the government expenditures at issue are neutral (step
two).
   ¶28 For that reason, the majority’s concession that a Ten
Commandments monument could withstand constitutional scrutiny
only underscores the fact that the court is not really proffering a
second basis for our holding in this case. We are not “hold[ing] that
  1
    See McCreary Cnty., Ky. v. ACLU of Ky., 545 U.S. 844, 867–68, 874
(2005) (concluding that constitutionality of Ten Commandments
monument depends on context in which it is displayed); Thomas v.
Daughters of Utah Pioneers, 197 P.2d 477, 488–90 (Utah 1948) (holding
that constitutionality of display of Mormon pioneer artifacts in state-
funded museum would depend on context).

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        JUSTICE LEE, concurring in part and in the judgment

the neutrality test we adopted in the context of prayers offered
during government meetings does not apply to public monuments,”
supra ¶ 12, because we are ultimately concluding that such test could
apply. And in light of that, there is no “second” basis for rejecting
Summum’s claim in this case (as of course the fact that the Society of
Separationists test might falter at the second step of the analysis is
irrelevant if the test would be rendered irrelevant at the first step).
   ¶29 Ultimately, and in any event, the majority’s views on the
inapplicability of the Society of Separationists test to cases involving
Ten Commandments monuments are not logically a basis for
rejecting Summum’s claim in this case. Such views may provide
guidance for lawyers and litigants in future cases, but they do not
establish a ground for rejecting Summum’s claim in this case.
    ¶30 Society of Separationists establishes an exception to the
general rule. The general rule is that “[n]o public money or property
shall be appropriated for or applied to any religious worship,
exercise or instruction.” UTAH CONST . art. I, § 4. Taken literally and
to its logical extreme, that could be understood to foreclose any use
of public funds that would even incidentally benefit religious
worship. Yet Society of Separationists recognized a limitation on the
literal application of article I, section 4. Soc’y of Separationists, Inc., 870
P.2d at 932–34 (rejecting the “absolutist position” advanced by
Society of Separationists). It held that “article I, section 4 does not
require . . . hostility toward religion,” but instead allows public
money or property to support religious worship or exercise if it is
“provided on a nondiscriminatory basis” and “the public money or
property [is] equally accessible to all.” Id. at 938.
   ¶31 A conclusion that this neutrality analysis is inapplicable
would not be a basis for dismissing a plaintiff’s claim under article I,
section 4. To the extent the court is signaling its skepticism that the
Society of Separationists test—or even part of it—is inapplicable, that
represents a point in favor of a plaintiff under article I, section 4.
That, ultimately, is what the court appears to be doing—identifying
a point of analysis that may favor a plaintiff like Summum in a
future case. Because that cannot be a second ground for dismissing
Summum’s claim in this case, I concur only in paragraphs 1–11 of
the majority opinion and disagree with the rest.
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