Establishment clause, Freedom of speech, Free exercise of religion, Pleasant Grove City v. Summum, Salazar v. Buono
First Amendment | Religion Law
When and how should governments be permitted to use private-law mechanisms to manage their public-law obligations? This short piece poses that question in the context of Summum, which the Supreme Court decided earlier this year, and Buono, which it will hear in the fall. In both cases, the government manipulated formal property rules in order to fend off constitutional challenges. In Summum, the government took ownership of a religious symbol in the face of a free speech challenge, while in Buono it shed ownership of land containing another sectarian symbol in an effort to moot an Establishment Clause problem. Although obvious differences separate the cases, they both raise the deeper question of whether and how governments ought to be able to structure private-law transactions with constitutional rules in mind. That issue, which cuts across a variety of legal fields, deserves more systematic attention.
Tebbe, Nelson, "Privatizing and Publicizing Speech," 104 Northwestern University Law Review Colloquy 70 (2009)