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FILED

United States Court of Appeals

Tenth Circuit

JUL 19 2002

PATRICK FISHER

Clerk PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

SUMMUM, a corporate sole and

church, and R.L. ZEFFERER,

Plaintiffs - Appellants,

v. No. 01-4022

CITY OF OGDEN, a municipal government entity; GLENN J. MECHAM, Mayor; JESSE M. GARCIA, Member, City Council; KENNETH J. ALFORD, Member, City Council; FASI M. FILIAGA, Member, City Council; RICK J. MAYER, Member, City Council; JOHN W. WOLFE, Member, City Council; RALPH W. MITCHELL, Member, City Council; and GARTH B. DAY, Member, City Council,

Defendants - Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF UTAH

(D.C. Nos. 1:98-CV-0150J; 1:99-CV-0031J)

Brian M. Barnard (James L. Harris, Jr., with him on the briefs) of the Utah Legal

Clinic, Salt Lake City, Utah, for Plaintiffs-Appellants.

Richard A. Van Wagoner (Allan L. Larson and Andrew M. Morse with him on the

brief) of Snow, Christensen & Martineau, Salt Lake City, Utah, for Defendants-

Appellees.

Before SEYMOUR and HENRY, Circuit Judges, and OBERDORFER, District

Judge.(1)

HENRY, Circuit Judge.

In this 42 U.S.C.  1983 action, Summum, a church, alleges that the City of

Ogden (sometimes, "the City"), and various officials of the City, violated the

church's First Amendment rights. Both parties moved for summary judgment; the

district court granted summary judgment in favor of the City of Ogden.

Exercising jurisdiction pursuant to 28 U.S.C.  1291, we affirm in part, reverse in

part, and remand for further proceedings consistent with this opinion.

I. BACKGROUND

On the lawn outside the City's municipal building (sometimes, the

"Municipal Grounds"), the City of Ogden maintains, and has maintained since

(1) The Honorable Louis F. Oberdorfer, United States District Judge for the

District of the District of Columbia, sitting by designation.

1966, a monument inscribed with the Ten Commandments (the "Ten

Commandments Monument" or the "Monument"). The Ten Commandments Monument is just under five feet tall and three feet wide. Most prominently, the

Monument bears an inscription of a version of the Ten Commandments:

I AM the LORD thy God.

Thou shalt have no other gods before me.

Thou shalt not make to thyself any graven images.

Thou shalt not take the name of the Lord thy God in vain.

Remember the Sabbath day, to keep it holy.

Honor thy father and thy mother, that thy days may be long upon the land

which the Lord thy God giveth thee.

Thou shalt not kill.

Thou shalt not commit adultery.

Thou shalt not steal.

Thou shalt not bear false witness against thy neighbor.

Thou shalt not covet thy neighbor's house.

Thou shalt not covet thy neighbor's wife, nor his manservant, nor his

maidservant, nor his cattle, nor anything that is thy neighbor's.

Aples' App. at 87, 90 (Aff. of Glenn J. Mecham, dated Feb. 22, 1999, Attach. A).

Alongside the statements quoted above, the Monument also includes two Stars of

David; the Greek letter Chi (ê) and Greek letter Rho (p), each superimposed upon

the other; an `all-seeing eye'; a pyramid; an eagle; an American flag; some

Phoenician letters;(1) and a representation of a scroll containing an inscription

reading: "Presented to the City of Ogden and Weber County Utah, by Utah State

(1) The meaning of these symbols, some sacred in Judeo-Christian traditions

and others used in ancient and even New Age religions, is less than clear. Some

of the symbols are utilized by fraternal organization like the Masonic Lodges,

while others have been used at times on American currency; the Greek letters Chi

and Rho have often been used to signify the first two letters of the Greek word

"Christos," meaning "Messiah" or "Christ."

Aerie Fraternal Order of Eagles 1966." Id. Located to the left and to the right of

the Monument are, respectively, a police officer memorial and a sister city tree

and plaque. Also located on the Municipal Grounds, though somewhat removed

from the area containing the above-described monuments, are various historical

markers.

The City of Ogden originally acquired the Ten Commandments Monument

as a gift from a community organization calling itself the Fraternal Order of

Eagles (the "Eagles"). During the 1950s and 1960s, the Eagles donated similar

monuments to communities across the United States. Through the monument

program, the Eagles hoped to provide American youth with "a code of conduct or

standards by which [those youth might] govern their actions." Aples' Br. at 7.

Perhaps not surprisingly, the Eagles' monuments have generated considerable

litigation. See, e.g., Summum v. Callaghan, 130 F.3d 906, 909, 919-20 (10th Cir.

1997) ("Callaghan") (concluding that Summum stated a Free Speech Clause claim

where a municipality displayed a "Ten Commandments monolith" Ä created and

donated by the Eagles Ä while simultaneously declining to display "a monolith

displaying certain religious tenets of the Summum church"); Books v. City of

Elkhart, Ind., 235 F.3d 292, 302-07 (7th Cir. 2000) (concluding that an Indiana

municipality's display of an identical Ten Commandments Monument violated the

Establishment Clause), cert. denied, 532 U.S. 1058, 1058-59 (2001).

Summum is a religion formed, in 1975, and chartered in Utah. Arguing that

the City's display of the Ten Commandments Monument violates the church's

First Amendment right to be free from an establishment of religion, followers of

the Summum religion requested that the City remove the Monument. The City

declined to do so. Followers of the Summum religion proposed, instead, then,

that the City install an identical monument in approximately the same location as

the Ten Commandments Monument, this new monument to be funded entirely by

private contributions (like the Ten Commandments Monument) but to bear,

instead of the Ten Commandments, the Seven Principles of the Summum religion

(the "Seven Principles Monument").(2) The City of Ogden likewise rejected this offer.

Summum brought this suit, alleging that the City of Ogden violates the

church's First Amendment rights by displaying the Ten Commandments

Monument (in violation of the First Amendment's Establishment Clause) and

again violates those rights by displaying that Monument while refusing to display

a Seven Principles Monument (in violation of the First Amendment's Free Speech

Clause). The City of Ogden countered that, as to the Establishment Clause claim,

since our circuit has held that another municipality did not violate that Clause in

displaying an identical Ten Commandments Monument, see Anderson v. Salt

(2) The Seven Principles Monument would be inscribed:

"Creation manifests when balance is perfected between the opposites. By applying

higher Law against lower laws, the Creation becomes divine." -Summum

THE GRAND PRINCIPLE OF CREATION

"NOTHING AND POSSIBILITY come in and out of bond infinite times in a finite moment."

- Summum

"The Principles of knowing Creation are Seven; those who know these possess the

Magic Key to whose touch all locked doors open to Creation." -Summum

THE PRINCIPLE OF PSYCHOKINESIS

" SUMMUM is MIND, Thought:

The Universe is a Mental Creation." -Summum

THE PRINCIPLE OF CORRESPONDENCE

" As above, so below; as below, so above." -Summum

THE PRINCIPLE OF VIBRATION

" Nothing rests; everything moves; everything vibrates." -Summum

THE PRINCIPLE OF OPPOSITION

"Everything is Dual; everything has an opposing point; everything has its pair of opposites;

like and unlike are the same; opposites are identical in nature, but different in degree;

extremes bond; all truths are but partial truths; all paradoxes may be reconciled." -Summum

THE PRINCIPLE OF RHYTHM

"Everything flows out and in; everything has its season; all things rise and fall; the pendulum

swing manifests in everything; the measure of the swing to the right is the measure of the

swing to the left; rhythm compensates." -Summum

THE PRINCIPLE OF CAUSE AND EFFECT

"Every Cause has its Effect; every Effect has its Cause; everything happens according to Law;

Chance is just a name for Law not comprehended; there are many fields of causation but

nothing escapes The Law." -Summum

THE PRINCIPLE OF GENDER

"Gender is in everything; everything has its Masculine and Feminine Principle; Gender

manifests on all levels." -Summum

PRESENTED TO OGDEN CITY & WEBER COUNTY BY SUMMUM 1999

Aplts' App. vol. II, at 407, 428, 431 (Complaint, dated Mar. 11, 1999, Ex. R).

Lake City Corp., 475 F.2d 29, 30-34 (10th Cir. 1973), circuit precedent forecloses

us from identifying such a violation here. As to the Free Speech Clause claim,

the City primarily argued that the Ten Commandments Monument represents the

City's own speech rather than the private speech of the Eagles and thus that the

City is not discriminating between private speakers: according to the City, the

relevant forum contains no private speech at all. In the alternative, the City

argued that, if the City is discriminating in favor of the Eagles and against

Summum, such discrimination is nonetheless reasonable, viewpoint neutral, and,

in any case, necessary to avoid an independent violation of the Establishment

Clause.

The district court agreed with the City and, accordingly, granted summary

judgment in favor of the City as to both of Summum's claims. As to the

Establishment Clause claim, the district court ruled that the Ten Commandments

Monument is primarily secular in nature and thus that the City's display of that

monument does not violate the Establishment Clause. As to the Free Speech

Clause claim, the district court concluded that the City has adopted, as the City's

own, the speech contained on each of the permanent monuments located on the

Municipal Grounds. To allow Summum to place the Seven Principles Monument

on the Municipal Grounds, the court reasoned, would, then, amount to permitting

Summum to dictate the City's own expression. Accordingly, the district court

ruled that the City had violated neither the Establishment Clause nor the Free

Speech Clause of the First Amendment.

II. DISCUSSION

At oral argument, Summum's counsel conceded that, absent en banc

reconsideration of Anderson v. Salt Lake City Corp., 475 F.2d 29, 30-34 (10th

Cir. 1973), this panel could not reverse the district court's grant of summary

judgment, in favor of the City of Ogden, on Summum's Establishment Clause

claim.(3) Given Summum's concession, we decline to further consider this issue and thus affirm that portion of the district court's order pertaining to Summum's

Establishment Clause claim.

We do address Summum's arguments in regard to the Free Speech Clause;

we conclude that Summum has demonstrated the City of Ogden's violation of

Summum's rights under this clause of the First Amendment and, hence, we

reverse the district court's grant of summary judgment on this issue. Our free-

speech inquiry proceeds in three steps. First, we dispose of a number of

uncontested matters, including (1) review of the elements of a 42 U.S.C.  1983

claim; (2) notation of the applicable standard of appellate review (de novo); (3)

consideration of whether the speech in question constitutes protected speech (it

does); (4) identification of the relevant forum (permanent monuments on the

grounds of Ogden City municipal building); (5) classification of the relevant

forum for purposes of Free Speech Clause analysis (a nonpublic forum); and (6)

notation of the applicable standard of Free Speech Clause review (a

reasonableness standard that, for one, bars viewpoint discrimination). Second, we

apply the relevant standard to the City's actions in rejecting the Seven Principles

Monument. In so doing, we conclude that (1) the City did discriminate against

Summum in rejecting the Seven Principles Monument while simultaneously

(3) Summum's concession may have been unwise; the Establishment Clause

issue is certainly not so straightforward as the City would presume. First, in light

of Stone v. Graham, 449 U.S. 39, 41-42 (1980), and Summum v. Callaghan, 130

F.3d 906, 910 n.2, 913 n.8 (10th Cir. 1997), the health of our Anderson precedent

is subject to question. Second, even to any extent to which Anderson remains

good law, the fact that Anderson considered an identical Ten Commandments

Monument is not necessarily controlling. Establishment Clause inquiry considers,

amongst other factors, the purpose and effect of the religious speech at issue. See

Lemon v. Kurtzman, 403 U.S. 602, 612-13 (1971) (developing a three-pronged

Establishment Clause analysis, the first two prongs of which consider,

respectively, the purpose and effect of the religious speech at issue); Santa Fe

Indep. Sch. Dist. v. Doe, 530 U.S. 290, 314-17 (2000) (developing the purpose

prong analysis); Stone, 449 U.S. at 41-43 (same); County of Allegheny v.

American Civil Liberties Union, 492 U.S. 573, 597-622 (1989) (developing the

effect prong analysis). The fact that the municipality at issue in Anderson (Salt

Lake City) maintained a proper purpose in displaying that municipality's Ten

Commandments Monument does not establish that the City of Ogden maintained

such a proper purpose. Nor, particularly in light of Allegheny's fact-intensive

inquiry, does the fact that Salt Lake City's Ten Commandments Monument did

not have an improper effect establish that the City of Ogden's Monument was notlikely to have such an improper effect.

displaying the Ten Commandments Monument and, further, (2) that

discrimination was, here, unreasonable. Third, we conclude that the City's

alleged concern for the avoidance of a violation of the Establishment Clause does

not justify rejection of the Seven Principles Monument.

A. Preliminary Matters

1. Elements of a  1983 Claim

Under 42 U.S.C.  1983, Summum must establish "(1) a violation of rights

protected by the federal Constitution or created by federal statute or regulation,

(2) proximately caused (3) by the conduct of a `person' (4) who acted under color

of any statute, ordinance, regulation, custom[,] or usage, of any State or Territory

or the District of Columbia." 1A Martin A. Schwartz, Section 1983

Litigation: Claims and Defenses  1.4, at 12 (3d ed. 1997) (internal quotation

marks and footnotes omitted); see also Gomez v. Toledo, 446 U.S. 635, 640

(1980) (providing a two-element formulation that encompasses each of the four

elements just described). The City of Ogden contests only Summum's

establishment of the first element: here, violation of rights protected under the

Free Speech Clause of the First Amendment to the United States Constitution

(made applicable to the States and the political subdivisions thereof via the

Fourteenth Amendment, see Wallace v. Jaffree, 472 U.S. 38, 49-50 (1985)).

2. Standard of Appellate Review

We review de novo a district court's grant of summary judgment. See

Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1124 (10th Cir. 2000)

("We review the district court's grant of summary judgment de novo."). Given

the First Amendment context of this case, our conduct of that de novo review

includes a particularly rigorous record inquiry. See Z.J. Gifts D-2, L.L.C. v. City

of Aurora, 136 F.3d 683, 685 (10th Cir. 1998) ("Where First Amendment interests

are implicated, this court is obligated to make an independent examination of the

record in [the record's] entirety to ensure the challenged regulation does not

improperly limit expressive interests."); Revo v. Disciplinary Bd. of the Supreme

Court, 106 F.3d 929, 932 (10th Cir. 1997) (same).

3. Protected Speech

While limited exceptions exist for such categories of speech as "fighting

words" and the "obscene," the protections of the Free Speech Clause extend to

most speech. Chaplinsky v. New Hampshire, 315 U.S. 568, 571-72 (1942)

("There are certain well-defined and narrowly limited classes of speech, the

prevention and punishment of which has never been thought to raise any

Constitutional problem."). The Seven Principles Monument does not fall within

these limited exceptions and thus constitutes protected speech. See Capitol

Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 760 (1995) ("[P]rivate

religious speech, far from being a First Amendment orphan, is as fully protected

under the Free Speech Clause as secular private expression."). The City of Ogden

does not dispute that the proposed Seven Principles Monument constitutes

protected speech. See Aples' Br. at 25 ("Appellees do not dispute that the content

of Summum's proposed gift is protected speech under the First Amendment.").

4. Identification of the Relevant Forum

Once we have confirmed that the speech in question is "protected speech"

for purposes of Free Speech Clause analysis, that analysis proceeds via

identification and classification of the relevant forum and then, depending upon

the forum's classification, application of the relevant standard of Free Speech

Clause review. See, e.g., Good News Club v. Milford Cent. Sch., 533 U.S. 98,

106 (2001) ("The standards that we apply to determine whether a State has

unconstitutionally excluded a private speaker from use of a public forum depend

on the nature of the forum."). Thus we turn next to the identification of the

relevant forum.

Identification of the relevant forum requires a nuanced approach that

considers (1) the government property to which access is sought and (2) the type

of access sought. See Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473

U.S. 788, 800-02 (1985) ("[F]orum analysis is not completed merely by

identifying the government property at issue. Rather, in defining the forum[,] we

have [also] focused on the access sought by the speaker."); Perry Educ. Ass'n v.

Perry Local Educators' Ass'n, 460 U.S. 37, 44 (1983) (defining the applicable

forum as the mailboxes of the school's teachers and the school's "interschool mail

system").

Here, the government property at issue is the lawn of the Ogden City

municipal building. The access sought is not merely to converse or post

temporary signs on the lawn, but the right to place permanent monuments on the

lawn: hence the relevant forum is `permanent monuments on the lawn of the

Ogden City municipal building.' Again, the City of Ogden does not dispute this

conclusion. See Aples' Br. at 20, 29-30 (describing the applicable forum as

"[t]he gallery of [permanent] monuments" located on the "Municipal Grounds").

5. Classification of the Forum

The appropriate standard of Free Speech Clause analysis depends on the

classification of the forum. The `permanent monuments on the lawn of the Ogden

City municipal building' forum may constitute: (1) a traditional public forum

(e.g., parks and streets), (2) a designated public forum (i.e., the government

voluntarily transforms a nonpublic forum into a traditional public forum, thereby

bestowing all the free speech rights associated with the traditional public forum,

albeit on a potentially temporary basis, onto that now `designated public forum'),

or (3) a nonpublic forum (i.e., the government retains the right to curtail speech

so long as those curtailments are viewpoint neutral and reasonable for the

maintenance of the forum's particular official uses).(4) See Cornelius v. NAACP

Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 800 (1985); Perry Educ. Ass'n v.

Perry Local Educators' Ass'n, 460 U.S. 37, 45-46 (1983). In classifying a

particular forum as either a designated public forum or nonpublic forum, we begin

with consideration of the intent of the relevant governmental entity. See

Cornelius, 473 U.S. at 803 ("We will not find that a public forum has been

created in the face of clear evidence of contrary intent, . . . nor will we infer that

the government intended to create a public forum when the nature of the property

is inconsistent with expressive activity.").

Here, the record is clear that the gallery of permanent monuments on the

Municipal Grounds constitutes "[p]ublic property which is not by tradition or

designation a forum for public communication." Perry, 460 U.S. at 46 (defining a

nonpublic forum). We therefore conclude that the permanent monuments on the

lawn of the Ogden City municipal building constitute, here, a nonpublic forum.

The City of Ogden agrees. See Aples' Br. at 30 ("The gallery of monuments Ä to

which [Summum] seeks access Ä is non-public.").

(4) A `limited public forum' is a subset of the nonpublic forum

classification. See, e.g., Summum v. Callaghan, 130 F.3d 906, 914 (10th Cir.

1997) ("In more recent cases, . . . the [Supreme] Court has used the term `limited

public forum' to describe a type of nonpublic forum . . . ."). A limited public

forum arises where "the government allows selective access to some speakers or

some types of speech in a nonpublic forum, but does not open the property

sufficiently to become a designated public forum." Callaghan, 130 F.3d at 916.

6. The Applicable Standard of Free Speech Clause Review

Municipalities may restrict access to a nonpublic forum "so long as the

[restrictions imposed] are reasonable . . . and are viewpoint neutral." Cornelius v.

NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 788, 806 (1985); see also

Good News Club v. Milford Cent. Sch., 533 U.S. 98, 106-07 (2001) ("The State's

power to restrict speech [within a nonpublic forum] . . . is not without limits. The

restriction must not discriminate against speech on the basis of viewpoint and the

restriction must be reasonable . . . .") (internal quotation marks and citation

omitted). The City of Ogden concurs. See Aples' Br. at 32 ("The City's decision

to restrict access to a non-public forum need only be reasonable . . . . and . . .

viewpoint neutral.").

Reasonableness is measured against the purposes of the given forum. See

Summum v. Callaghan, 130 F.3d 906, 916 (10th Cir. 1997) ("The government

may limit speech in a nonpublic forum to reserve the forum for the specific

official uses to which [that forum] is lawfully dedicated."). While "[c]ontrol over

access to a nonpublic forum can be based on subject matter and speaker identity,"

this is true only "so long as the distinctions drawn are reasonable in light of the

purpose served by the forum." Cornelius, 473 U.S. at 806; accord Good News,

533 U.S. at 106-07. Reasonableness in light of the forum's purpose depends upon

consideration of "all the surrounding circumstances." Cornelius, 473 U.S. at 809.

Speech restrictions in a nonpublic forum must be not only reasonable but

also "viewpoint neutral." Id. at 806; see also Good News, 533 U.S. at 106-07

("The restriction must not discriminate against speech on the basis of

viewpoint.").

Although a speaker may be excluded from a nonpublic forum if [the

speaker] wishes to address a topic not encompassed within the purpose

of a forum, or if [the speaker] is not a member of the class of speakers

for whose especial benefit the forum was created, the government

violates the First Amendment when it denies access [to a nonpublic

forum] to a speaker solely to suppress the point of view [that the

speaker] espouses on an otherwise includible subject.

Cornelius, 473 U.S. at 806.

B. Application of the Nonpublic Forum's `Reasonable and Viewpoint

Neutral' Standard of Free Speech Clause Review

The City of Ogden advances two arguments by which the City hopes to

establish the reasonableness and viewpoint neutrality of the City's simultaneous

(1) display of the Ten Commandments Monument and (2) refusal to display the

Seven Principles Monument. First, the City of Ogden argues that the City has

adopted the speech of the Ten Commandments Monument and has thus eliminated

all private speech from the relevant forum. In the absence of any such private

speech, the City argues, the City cannot be in any sense discriminating between

potential private speakers, much less doing so either unreasonably or on the basis

of viewpoint. Second, the City of Ogden argues that, even if the City has

discriminated by rejecting the Seven Principles Monument while simultaneously

displaying the Ten Commandments Monument, that discrimination is both

reasonable and viewpoint neutral because based upon the historical relevance, to

the Ogden City community, of the respective texts. We consider the City's

contentions in turn.

1. The City of Ogden's Claimed Adoption of the Speech of the Ten

Commandments Monument

The City of Ogden's primary argument in regard to Summum's Free Speech

Clause claim is that, because the City has adopted the speech of the Ten

Commandments Monument as the City's own, the City cannot be discriminating

between speakers in violation of the Free Speech Clause. Instead, (1) the City is

the only party speaking and (2) the Free Speech Clause places no relevant

limitations on what the City itself chooses to proclaim. Because we reject the

first aspect of the City's argument in this regard, we need not address the second.

a. Consideration of the Wells Factors

In assessing the City's claimed adoption of the speech of the Ten

Commandments Monument, we turn first to our own precedent regarding such

proposed `adoptions.' In Wells v. City and County of Denver, 257 F.3d 1132,

1140-42 (10th Cir. 2001), Ä a case not available at the time of the district court's

decision and, disappointingly, neither cited nor discussed by either party during

briefing or oral argument before our court Ä we considered whether a sign listing

the sponsors of a holiday display constituted the speech of the government or of

the sponsors themselves. In deciding that the sign constituted government speech,

we adopted and considered four factors: (1) whether the central purpose of the

sign was to promote the views of the municipality; (2) whether the municipality

exercised editorial control over the content of the sign; (3) whether the literal

speaker was an employee of the municipality; and (4) whether ultimate

responsibility for the content of the sign rested with the municipality. See also

Knights of the Ku Klux Klan v. Curators of the Univ. of Mo., 203 F.3d 1085,

1093-94 (8th Cir. 2000) (developing the factors we borrowed in Wells).

We consider the Wells factors in turn. First, the central purpose of the Ten

Commandments Monument is to advance the views of the Eagles rather than those

of the City of Ogden. The Eagles designed, produced, and donated the Ten

Commandments Monument, all with the avowed purpose of providing a moral

code for youth to emulate. Indeed, the Eagles presented similar monuments to

municipalities across the country, all toward the same aim. That the Monument's

central purpose is to promote the views and agenda of the Eagles rather than the

City of Ogden is further evidenced by the City attorney's concession, at oral

argument, that the City has no idea as to the meaning of parts of the Monument,

particularly the Phoenician letters. Cf. Wells, 257 F.3d at 1141 (noting, in

considering the central purpose factor, that the City exercised "complete control"

over the "construction, message, and placement" of the disputed sign).

Second, certainly the City of Ogden maintained no editorial control over

the design and creation of the Monument. Rather, the Eagles exercised complete

control over the content of the Monument, turning over to the City of Ogden a

completed product. Cf. id. at 1142 (noting, in concluding that the government

exercised editorial control over the sign at issue, that "there is no indication that

any of the [private speakers] even knew about the [disputed sign], much less

exercised any editorial control over its design or content" and further relying on

the fact that the municipality "built, paid for, and erected" the sign at issue).

The third and fourth factors are, admittedly, somewhat less clear in our

context. After the Eagles donated the Monument to the City of Ogden, we might

think that the City became the literal speaker, every day proclaiming the contents

of the Monument. We conclude, however, that the Eagles are properly considered

the "literal speaker" of the speech contained on the Monument. We so conclude

based upon recognition of the fact that the Eagles, free from any City control,

composed the speech contained on the Monument Ä a fact underlined by the

Monument's explicit acknowledgment of the Eagles as the Monument's creators.

Cf. Knights of the Ku Klux Klan, 203 F.3d at 1094 & n.10 (relying on the degree

to which a government employee "substantial[ly] edit[ed]" the speech at issue to

conclude that the government became the literal speaker).(5)

Finally, we consider whether the municipality maintained ultimate

responsibility for the content of the Monument. Certainly the City did not

initially maintain such responsibility since the Eagles independently constructed

the Monument. After the City acquired title to the Monument, however,

presumably the City could have sold, re-gifted, modified, or even destroyed the

Monument at will. Arguably, then, the City may be charged with ultimate

responsibility for the content of the Monument. Cf. Wells, 257 F.3d at 1142

(considering, as to the ultimate responsibility factor, which entity provided

security for the disputed sign).

b. Consideration of the Post Hoc Nature of the City of

Ogden's Effort to Claim Adoption of the Speech of the Ten

Commandments Monument

Three of the four Wells factors thus suggest that the City of Ogden did not

effectively adopt the speech of the Ten Commandments Monument. Any doubt

regarding this conclusion is removed through consideration of the after-the-fact

nature of the City of Ogden's effort to claim adoption of that speech.

The Supreme Court has expressed considerable concern that post hoc

(5) Here we look to the Eighth Circuit's Knights of the Ku Klux Klan rather

than to Wells because Wells, while adopting the literal speaker factor, did not

explicitly apply that factor. See Wells, 257 F.3d at 1140-42 ("[W]e rely primarily

on the four factors articulated in Knights of the [Ku Klux Klan].").

rationalizations may obscure viewpoint discrimination. In City of Lakewood v.

Plain Dealer Publ'g Co., 486 U.S. 750 (1988), the Court required municipalities

to employ clear and objective standards in licensing particular newspapers to

place newsracks on public property. Without the use of such standards, the Court

explained, "post hoc rationalizations by the [municipality] and the use of shifting

or illegitimate criteria . . . [will] mak[e] it difficult for courts to determine in any

particular case whether the [municipality] is permitting favorable, and

suppressing unfavorable, expression." City of Lakewood, 486 U.S. at 758.

Similarly, in Cornelius v. NAACP Legal Def. and Educ. Fund, Inc., 473 U.S. 797,

811-13 (1985), the Court noted: "The existence of reasonable grounds for limiting

access to a nonpublic forum . . . will not save a regulation that is in reality a

facade for viewpoint-based discrimination." The Cornelius Court, despite

recognizing "the validity and reasonableness of the justifications [now] offered by

[the government]" proceeded to remand for consideration of whether the

government's exclusion of a speaker from a nonpublic forum "was impermissibly

motivated by a desire to suppress a particular point of view." Cornelius, 473 U.S.

at 812-13; cf. American Jewish Congress v. City of Beverly Hills, 90 F.3d 379,

385-86 (9th Cir. 1996) (en banc) (holding that a municipality's ad hoc,

standardless policy for permitting private religious unattended displays in a public

park violated the Establishment Clause because of the policy's potential for

impermissibly favoring one religion over another).

Here, the City of Ogden is unable to point to any pre-litigation evidence of

the City's explicit adoption of the speech of the Ten Commandments Monument.

Summum filed the Complaint in this case on March 11, 1999. Four months later,

the City of Ogden's City Council issued a statement explicitly noting that the City

has "adopted the inscriptions [of each Monument on the grounds of the Ogden

City municipal building] as expressions of the City." Aples' App. at 80, 84

(Second Aff. of Norman L. Ashton, dated July 28, 1999, incorporating Mr.

Ashton's July 26, 1999 letter to Summum, in which Mr. Ashton explains the City

Council's rejection of Summum's proposed gift). This statement, drafted by Mr.

Ashton in his role as the City's attorney, constitutes the first written expression of

the City's alleged adoption of the speech contained on the Ten Commandments

Monument.

In his deposition for this case, then-Ogden City mayor Glenn J. Mecham

does claim a City practice, pre-dating the rejection of the Seven Principles

Monument, of only accepting those proposed gifts that constitute a "legitimate

public expression of [the City's] official view." Aplts' App. vol. I, at 271 (Dep.

of Glenn J. Mecham, dated June 2, 1999, at 10). The City, however, fails to point

to any particular pre-litigation occasion on which the City had actually applied

this alleged practice. Indeed, in the one circumstance cited by the City, the

successful 1985-1991 effort to install a particular historical marker, the City

confesses that, in response to the City Council's query as to "whether the

[proposed marker] conformed `to the adopted Goals and Policies for the

[development of the grounds of the municipal building],' . . . . [t]he Staff Report

of the Planning Commission explained [that] the `[p]olicies are silent on the

addition of monuments and the lack of a master site development plan makes

decisions on additions, such as this, a best guess on what works . . . .'" Aples'

Br. at 10 (quoting Aplts' App. vol. II, at 508, 551, 553-54 (Aff. of Gloria J.

Berrett, dated Apr. 9, 1999, incorporating the Ogden City Planning Commission's

Report of Action, dated July 25, 1991)) (emphasis added).

In light of the Wells factors and the caselaw's particular concern for post

hoc rationalizations in the Free Speech Clause context, we must conclude that the

speech represented by the Ten Commandments Monument represents the speech

of the Eagles rather than that of the City of Ogden.(6)

2. The Historical Relevance Justification

We must also reject the City of Ogden's contention that the City's

discrimination, in favor of the Eagles and against Summum, is reasonable based

upon the comparative historical relevance, to the Ogden City community, of the

(6) Even the City of Ogden, on occasion, refers to the Ten Commandments

Monument as the "OFOE Monument," with OFOE standing in for "Ogden

Fraternal Order of Eagles." Aples' Br. at 6, 12, 15 n.10, 18, 20, 23, 41.

Ten Commandments and the Seven Principles. We do not conclude that a

municipality may never maintain a nonpublic forum to which access is controlled

based upon `historical relevance' to the given community. Rather, we conclude

only that, here, the City of Ogden failed to employ adequate safeguards to ensure

that the `historical relevance' criterion did not devolve into a mere post hoc

facade for viewpoint discrimination.

In Summum v. Callaghan, 130 F.3d 906, 920 (10th Cir. 1997), we

observed: "Allowing government officials to make decisions as to who may speak

on [municipal] property, without any criteria or guidelines to circumscribe their

power, strongly suggests the potential for unconstitutional conduct, namely

favoring one viewpoint over another." Our concern in Callaghan stems from the

Supreme Court's same concern, as expressed in cases such as City of Lakewood

v. Plain Dealer Publ'g Co., 486 U.S. 750, 758 (1988), and Cornelius v. NAACP

Legal Def. and Educ. Fund, Inc., 473 U.S. 797, 811-13 (1985), as noted

immediately above in section II(B)(1)(b). In Callaghan, we quoted City of

Lakewood at length:

`[A] law or policy permitting communication in a certain manner for

some but not for others raises the specter of content and viewpoint

censorship. This danger is at its zenith when the determination of who

may speak and who may not is left to the unbridled discretion of a

government official. . . . [W]ithout standards governing the exercise of

discretion, a government official may decide who may speak and who

may not based upon the content of the speech or viewpoint of the

speaker.'

130 F.3d at 920 (quoting City of Lakewood, 486 U.S. at 763-64). See also Board

of Regents of the Univ. of Wis. Sys. v. Southworth, 529 U.S. 217, 235-36 (2000)

(remanding out of concern that the use of student-body elections to disperse

money collected via student activity fees would not adequately safeguard against

viewpoint discrimination in the disbursement of those funds).

In order to prevent viewpoint discrimination, and thereby remain in

compliance with the Free Speech Clause, a municipality need not necessarily

employ written guidelines. See Wells v. City and County of Denver, 257 F.3d

1132, 1150 (10th Cir. 2001) ("[T]he fact that [a municipality's] policy is

unwritten is not fatal, but merely a factor to be considered.") (internal quotation

marks omitted). In such a case, a municipality might instead rely upon a "well-

established practice" as to its selection amongst speakers. City of Lakewood, 486

U.S. at 770. We consider, then, in turn, whether the City of Ogden can here rely

on either (1) a written policy or (2) a well-established practice as a means of

adequately safeguarding against viewpoint discrimination in the City's

administration of the asserted `historical relevance' criterion.

a. Consideration of Whether the City of Ogden can Ground

the Asserted `Historical Relevance' Criterion in Any

Written Policy

Here, the City of Ogden cannot ground the City's `historical relevance'

justification in any written policy. As we have noted, Summum filed the

Complaint that initiated this lawsuit on March 11, 1999. Only in late July of 1999

did the City of Ogden's City Council, through the City Attorney, issue a statement

explaining that the Seven Principles Monument failed to "fall within the purposes

for which the City has reserved the forum," those purposes including

"memorializ[ing] historical and cultural events and ideas associated with the area,

its settlement and development." Aples' App. at 80, 84 (Second Aff. of Norman

L. Ashton, dated July 28, 1999, incorporating Mr. Ashton's July 26, 1999 letter to

Summum, in which Mr. Ashton explains the City Council's rejection of

Summum's proposed gift).

While the City also notes a "Municipal Gardens Master Plan," dated

February 24, 1984 [and thus pre-dating the City's rejection of the Seven

Principles Monument], this plan does not develop the `historical relevance'

criterion. Aplts' App. vol. II, at 508, 528-34 (Aff. of Gloria J. Berrett, dated Apr.

9, 1999, incorporating the Municipal Gardens Master Plan). Rather, the Master

Plan merely observes, in passing, that the Plan "does not preclude the concept of

making history visible by means of [an] information center, statues, etc." Id. at

531 (emphasis added). This is a slender reed, indeed, upon which to find a policy

requiring that monuments be selected based upon historical relevance to the

Ogden City community. We conclude, particularly in light of the City's

subsequent admission that "[the City's p]olicies are silent on the addition of

monuments," id. at 508, 551, 553-54 (incorporating the Ogden City Planning

Commission's Report of Action, dated July 25, 1991) (emphasis added), that the

City of Ogden has failed to establish a written policy of monument selection

based upon historical relevance to the Ogden City community.

b. Consideration of Whether the City of Ogden can Ground

the Asserted `Historical Relevance' Criterion in Any

`Well-Established Practice'

Absent evidence of written guidelines to safeguard against viewpoint

discrimination, we consider whether the City of Ogden has demonstrated the

existence of a `well-established practice' of resort to the `historical relevance'

criterion. The City claims such a practice; in support of this claim, the City cites

the deposition testimony of then-Ogden City mayor Glenn J. Mecham. Mayor

Mecham testified that, in deciding whether to accept a proposed monument, one

factor that he would consider was whether the monument represents "a statement

that is based upon the history and traditions of Ogden City, as has been manifest

in various modes and media since Ogden's inception in 1851." Aplts' App. vol. I,

at 278 (Dep. of Glenn J. Mecham, dated June 2, 1999, at 26). Other than that

statement, however, Mayor Mecham and the City of Ogden provide no further

evidence of the existence of such a practice.

Other testimony, including that of Mayor Mecham himself, suggests that

the historical significance criterion is not well-established. Mayor Mecham

carefully testified that while historical relevance to the Ogden City community

may represent one factor upon which he would base a decision to accept a

proposed monument, individual members of the City Council may not utilize the

same standard. See id. at 277-78 (Dep. of Glenn J. Mecham, dated June 2, 1999,

at 25-26). The City of Ogden does not provide any evidence suggesting that those

council members, prior to the date on which Summum filed the instant action,

ever themselves considered the `historical relevance' criterion.

Consideration of the monuments adjacent to the Ten Commandments

Monument further suggests that the `historical relevance to the Ogden City

community' standard is not well-established. The adjacent monuments are (1) a

monument commemorating police officers who have given their lives in service to

Ogden City and (2) a tree and plaque commemorating Ogden City's sister city.

That these monuments suggest a theme of `historical relevance' is not self-

evident; the City makes no effort to explain the presence of these monuments in

terms of historical relevance to the Ogden City community.

Thus, the City of Ogden has provided no evidence of a written policy

directing that monuments be accepted for placement on the lawn of the municipal

building based upon historical relevance to the Ogden City community. Instead,

the City has provided only the relatively scant and conclusory deposition

testimony of one individual in order to demonstrate resort to such a criterion. We

conclude, based on this evidence, that the City has failed to demonstrate the

existence of a well-established practice of accepting monuments based upon the

monuments' historical relevance to the Ogden City community. Cf. Wells, 257

F.3d at 1150-51 (finding, in a section of the court's opinion different than that

discussed above at Section II(B)(1)(a), the existence of a `well-established

practice' governing selection amongst competing speakers where the municipality

demonstrated the existence of an absolute ban on speech in the given forum Ä a

ban that left the municipality with "very little," "if any," room for discretion). In

the absence, then, of any apparent policy governing the City's simultaneous (1)

rejection of the Seven Principles Monument and (2) display of the Ten

Commandments Monument, we must conclude that the City of Ogden has

unreasonably, and in violation of the Free Speech Clause, risked viewpoint

discrimination in the relevant forum.

C. The Establishment Clause `Defense'

Finally, the City of Ogden endeavors to enlist the Establishment Clause in

defense of the City's rejection of the Seven Principles Monument. According to

the City, displaying the Seven Principles Monument would place the City in

violation of the Establishment Clause; the prospect of such a violation, the City

argues, justifies any infringement upon Free Speech Clause rights otherwise

attributable to the City's rejection of the Seven Principles Monument.

The Supreme Court has yet to resolve whether a municipality's interest in

avoiding an Establishment Clause violation justifies viewpoint discrimination.

See Good News Club v. Milford Cent. Sch., 533 U.S. 98, 113 (2001) ("[I]t is not

clear whether a State's interest in avoiding an Establishment Clause violation

would justify viewpoint discrimination. We need not, however, confront the issue

in this case, because we conclude that the school has no valid Establishment

Clause interest.") (internal citation omitted). Like the Supreme Court in Good

News (and also in Rosenberger v. Rector and Visitors of the Univ. of Va., 515

U.S. 819, 837-46 (1995), Lamb's Chapel v. Center Moriches Union Free Sch.

Dist., 508 U.S. 384, 394-96 (1993), and Widmar v. Vincent, 454 U.S. 263, 271

(1981)), we need not resolve this issue because we conclude that the City of

Ogden has not established that the display of the Seven Principles Monument

would have constituted an Establishment Clause violation. See Summum v.

Callaghan, 130 F.3d 906, 920-21 (10th Cir. 1997) (reaching the same conclusion

on essentially identical facts).

While the health of the standard of Establishment Clause analysis

developed in Lemon v. Kurtzman, 403 U.S. 603, 612-13 (1971), may be the

subject of some debate, see, e.g., Michael W. McConnell, Stuck with a

Lemon: A New Test for Establishment Clause Cases Would Help Ease

Current Confusion, 83 A.B.A. J. 46 (Feb. 1997), Lemon "has not been

overruled" and thus remains the starting point for our Establishment Clause

analysis. Lamb's Chapel, 508 U.S. at 395 n.7; see also Santa Fe Indep. Sch. Dist.

v. Doe, 530 U.S. 290, 314-17 (2000) (applying at least the first prong of the

Lemon test, that concerning the governmental purpose animating the challenged

policy). Under Lemon, we consider the purposes animating the challenged policy,

the likely effects of that policy, and whether the policy fosters an excessive

entanglement between government and religion. See Lemon, 403 U.S. at 612-13

("First, the [given municipal action] must have a secular legislative purpose;

second, [the action's] principal or primary effect must be one that neither

advances nor inhibits religion; [and,] finally, the [action] must not foster an

excessive government entanglement with religion.") (internal quotation marks and

citation omitted).

Particularly informing our consideration of the Lemon factors is

consideration of whether the challenged policy ensures government "neutrality

towards religion." Good News, 533 U.S. at 114 (internal quotation marks

omitted) (emphasis deleted). Our neutrality inquiry must consider not only

whether the government is actually acting neutrally but also whether a reasonable

observer, reasonably informed as to the relevant circumstances, would perceive

the government to be acting neutrally.(7) Finally, our consideration of the Lemon

factors demands sensitivity to any "coercive pressure" imposed upon the relevant

community on account of the challenged policy. Id. at 115; Santa Fe, 530 U.S. at

310-13 (relying on the coercive nature of prayer at public high school football

games to find such prayer to constitute a violation of the Establishment Clause).

Applying these factors to the City of Ogden's hypothetical acceptance of

the Seven Principles Monument, we are not persuaded that such acceptance would

constitute a violation of the Establishment Clause. The City of Ogden advances

arguments as to both the purpose and the effect prongs of Lemon. We consider

these arguments in turn.

First, as to the purpose of the City's hypothetical display of the Seven

Principles Monument, the City points only to Summum's purpose in making the

donation, a purpose the City characterizes, with a cite only to a deposition not included in the appellate record, as "to use [the Seven Principles Monument] as a

proselyt[iz]ing tool, to get out the word concerning Summum's religious beliefs,

to attract greater attention to Summum as a viable and alternative religious

organization." Aples' Br. at 38. The purpose inquiry, however, centers not on

the purpose animating the speech of a particular private actor (e.g., Summum)

but, rather, on the purpose for which the government allows such speech on

government property. See, e.g., Santa Fe, 530 U.S. at 314-16 (examining the

intent animating the decision of the government to institute a particular policy

regarding speech at public high school football games: "[T]he . . . policy fails a

facial challenge because the attempt by the District to encourage prayer is also at

issue.") (emphasis added).

If the City of Ogden's City Council displayed the Seven Principles

Monument with the purposes that the City attributes to Summum, our concern

regarding the Establishment Clause would be great indeed. Here, however, the

City presents no evidence suggesting that the City would have maintained an

improper purpose in accepting the proposed monument. Based upon the record

before us, we cannot conclude that the City of Ogden's acceptance of the Seven

Principles Monument would have been motivated by anything other than a

concern for equal access.

Second, the City argues that a reasonable observer would perceive the City

(7) See Santa Fe, 530 U.S. at 308, 317 (considering a challenged policy from

the vantage point of "an objective observer" and in light of "the history and

context of the community and forum") (internal quotation marks omitted); County

of Allegheny v. American Civil Liberties Union, 492 U.S. 573, 592, 597 (1989)

(considering "what viewers may . . . understand to be the purpose of the

[challenged policy]" and whether "the challenged governmental action is [likely]

to be perceived by adherents of the controlling denominations as an endorsement,

and by the nonadherents as a disapproval, of their individual religious choices")

(internal quotation marks omitted); cf. Good News, 533 U.S. at 117, 118

(considering the challenged policy from the vantage point of a reasonable, and

reasonably well-informed, observer; prefacing this inquiry, however, with the

near disclaimers: "even if we were to consider" and "even if we were to inquire").

of Ogden's display of the Seven Principles Monument as an endorsement of the

tenets of the Summum religion. The City (somewhat ironically in light of the

City's simultaneous insistence that the display of the Ten Commandments

Monument alone does not violate the Establishment Clause) notes that the

presence of the Seven Principles Monument on the Municipal Grounds, coupled

with the fact that Summum would be the only church to have contributed a

monument to the relevant forum, would leave an observer to conclude that the

City of Ogden endorses Summum.

Again, we must disagree; we are persuaded that a reasonable observer

would, instead, note the fact that the lawn of the municipal building contains a

diverse array of monuments, some from a secular and some from a sectarian

perspective. The secular monuments would include the police officer memorial,

the sister city tree, and certain historical monuments. The sectarian monuments

would include one from a Judeo-Christian perspective (the Ten Commandments

Monument), see Stone v. Graham, 449 U.S. 39, 41 (1980) ("The Ten

Commandments are undeniably a sacred text in the Jewish and Christian faiths,

and no legislative recitation of a supposed secular purpose can blind us to that

fact.") (footnote omitted), and one from the perspective of Summum. As the City

of Ogden itself recognizes: "The trend of the [United States Supreme] Court

appears to be that greater and more equal accommodation of all ideas (pluralism

and diversity), including religious discourse, in public fora does not threaten the

private religious freedom the Establishment Clause was meant to protect." Aples'

Br. at 26 n.14. To the extent to which the City of Ogden remains genuinely

concerned regarding the likely misapprehensions of passersby, the City might also

post a disclaimer, explaining clearly that private entities are responsible for at

least some of the Municipal Grounds' monuments, including the Ten

Commandments Monument and the Seven Principles Monument. Cf. Capitol

Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 769 (1995) ("If [a

particular governmental unit] is concerned about misperceptions, nothing prevents

[that governmental unit] from requiring all private displays in the [forum] to be

identified as such."). Under these circumstances, we cannot conclude that the

City's display of the Seven Principles Monument would have had the effect of

conveying, to a reasonable and reasonably well-informed observer, that the City

of Ogden was endorsing a particular religion.

III. CONCLUSION

The Free Speech Clause of the First Amendment compels the City of Ogden

to treat with equal dignity speech from divergent religious perspectives. On these

facts, the City cannot display the Ten Commandments Monument while declining

to display the Seven Principles Monument.

For the foregoing reasons, we (1) AFFIRM the district court ruling in so far

as that ruling granted summary judgment in favor of the City of Ogden as to

Summum's Establishment Clause claim and (2) REVERSE the district court

ruling in so far as that ruling granted summary judgment in favor of the City of

Ogden on Summum's Free Speech Clause claim. We REMAND for further

proceedings consistent with this opinion.

OBERDORFER, District Judge, concurs in the result.