Opposition Brief — Ann Waldron Dawson, et al., Petitioners v. City of Grand Haven, Michigan

No. 17-1024

================================================================

In The

Supreme Court of the United States

-----------------------------------------------------------------ANN WALDRON DAWSON, JEFFREY ALAN GRUNOW,

WAYNE ERXLEBEN, SHIRLEY ERXLEBEN,

LAURA GRACE STERENBERG, GARY KIEVIT,

AND MARY KIEVIT,

Petitioners,

v.

CITY OF GRAND HAVEN,

Respondent.

-----------------------------------------------------------------On Petition For Writ Of Certiorari

To The Michigan Court Of Appeals

-----------------------------------------------------------------BRIEF IN OPPOSITION TO PETITION

FOR A WRIT OF CERTIORARI

-----------------------------------------------------------------ROBERT A. LUSK

Counsel for Respondent

LUSK ALBERTSON PLC

409 E. Jefferson, Fifth Floor

Detroit, Michigan 48226-4300

(248) 988-5662

RLusk@LuskAlbertson.com

================================================================

COCKLE LEGAL BRIEFS (800) 225-6964

WWW.COCKLELEGALBRIEFS.COM

i

QUESTIONS PRESENTED

1.

Did the Michigan Court of Appeals Properly Apply

Government Speech Analysis in Concluding that

the Dewey Hill monument feature pole constitutes

government speech?

2.

Is the proposition that Respondent created a Limited Public Forum Unsupported by Law?

3.

Is Resolution 15-013 Consistent with the Equal

Protection Clause of the U.S. Constitution?

4.

Is the Michigan Court of Appeals’ Opinion Consistent with the Jurisprudence of this Court?

ii

TABLE OF CONTENTS

Page

QUESTIONS PRESENTED ................................

i

TABLE OF CONTENTS ......................................

ii

TABLE OF AUTHORITIES .................................

iii

STATEMENT OF THE CASE..............................

1

ARGUMENT ........................................................

5

I.

MICHIGAN PROPERLY HELD THAT THE

DEWEY HILL MONUMENT FEATURE

POLE IS CONTROLLED BY THE

GOVERNMENT SPEECH DOCTRINE

ELUCIDATED IN SUMMUM ...................

5

A. SUMMUM AND ITS PROGENY ARE

CONTROLLING IN THIS CASE ........

5

B. PETITIONERS’ ARGUMENTS AGAINST

A FINDING OF GOVERNMENT SPEECH

IN THIS CASE ARE UNAVAILING ..... 16

II.

PETITIONERS’ ARGUMENT THAT THE

DEWEY HILL MONUMENT FEATURE

POLE IS A LIMITED PUBLIC FORUM IS

UNSUPPORTED BY LAW ........................ 24

III.

RESOLUTION 15-013 IS CONSISTENT

WITH EQUAL PROTECTION UNDER THE

U.S. AND MICHIGAN CONSTITUTIONS .... 31

IV. THE LOWER COURTS PROPERLY APPLIED

THE APPLICABLE CONSTITUTIONAL

JURISPRUDENCE IN THIS CASE ............. 36

CONCLUSION..................................................... 37

iii

TABLE OF AUTHORITIES

Page

CASES

Bannon v. Sch. Dist. of Palm Beach Cty., 387 F.3d

1208 (11th Cir. 2004) ...............................................35

Capitol Square Review and Advisory Bd. v. Pinette, 515 U.S. 753, 115 S.Ct. 2440, 132

L.Ed.2d 650 (1995) ............................................ 16, 17

Cornelius v. NAACP Legal Defense & Ed. Fund,

Inc., 473 U.S. 788, 105 S.Ct. 3439, 87 L.Ed.2d

567 (1985) ................................................................18

Fox v. Michigan Employment Sec. Comm’n, 379

Mich. 579, 153 N.W.2d 644 (1967) ..........................32

Freedom from Religion Found., Inc. v. City of

Warren, 873 F.Supp.2d 850 (E.D. Mich. 2012) ..... 26, 27

Golden v. Rossford Exempted Vill. Sch. Dist., 445

F.Supp.2d 820 (N.D. Ohio 2006) .............................35

Good News Club v. Milford Cent. Sch., 533 U.S.

98, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) ..... 28, 34

Harville v. State Plumbing & Heating, Inc., 218

Mich.App. 302, 553 N.W.2d 377 (1996) ...................32

In re Contempt of Dudzinski, 257 Mich.App. 96,

667 N.W.2d 68 (2003) ..............................................32

J.S. v. Holly Area Schs., 749 F.Supp.2d 614 (E.D.

Mich. 2010) ..............................................................30

Kincaid v. Gibson, 236 F.3d 342 (6th Cir. 2001) ..... 24, 25

Lamb’s Chapel v. Ctr. Moriches Union Free Sch.

Dist., 508 U.S. 384, 113 S.Ct. 2141, 124

L.Ed.2d 352 (1993) ..................................................26

iv

TABLE OF AUTHORITIES – Continued

Page

Mech v. Sch. Bd. of Palm Beach Cty, Fla., 806

F.3d 1070 (11th Cir. 2015) .......................................12

Perry Ed. Ass’n v. Perry Local Educators’ Ass’n,

460 U.S. 37, 103 S.Ct. 948, 74 L.Ed.2d 794

(1983) ................................................................. 25, 26

Pleasant Grove City v. Summum, 555 U.S. 460,

129 S.Ct. 1125, 172 L.Ed.2d 853 (2009) ......... passim

Reed v. Town of Gilbert, 576 U.S. ___, 135 S.Ct.

2218, 192 L.Ed.2d 236 (2015) .................................34

Rosenberger v. Rector and Visitors of Univ. of Va.,

515 U.S. 819, 115 S.Ct. 2510, 132 L.Ed.2d 700

(1995) ........................................................... 25, 31, 34

Satawa v. Macomb Cty. Rd. Comm’n, 689 F.3d

506 (6th Cir. 2012) ...................................................22

Sloan v. Lemon, 413 U.S. 825, 93 S.Ct. 2982, 37

L.Ed.2d 939 (1973) ..................................................35

Southeastern Promotions, Ltd. v. Conrad, 420 U.S.

546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975) .............22

Thomas v. Chicago Park Dist., 534 U.S. 316, 122

S.Ct. 775, 151 L.Ed.2d 783 (2002) ..........................22

United States v. Kokinda, 497 U.S. 720, 110 S.Ct.

3115, 111 L.Ed.2d 571 (1990) .................................24

United Veterans Mem’l & Patriotic Ass’n v. City

of New Rochelle, 72 F.Supp.3d 468 (S.D.N.Y.

2014) ................................................................ passim

Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854,

162 L.Ed.2d 607 (2005) ...........................................21

v

TABLE OF AUTHORITIES – Continued

Page

Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 135 S.Ct. 2239, 192

L.Ed.2d 274 (2015) ............................ 9, 11, 12, 13, 14

Wellmaker v. Dahill, 836 F.Supp. 1375 (N.D.

Ohio 1993) ...............................................................32

Woodland v. Michigan Citizens Lobby, 423 Mich.

188, 378 N.W.2d 337 (1985) ....................................32

CONSTITUTIONAL PROVISIONS

U.S. Const. amend. I ........................................... 5, 9, 16

Mich. Const. Art. 1, Sec. 2 ................................... 3, 4, 31

Mich. Const. Art. 1, Sec. 5 .............................................3

STATUTES

MCL 37.2101(1) ..........................................................31

1

STATEMENT OF THE CASE

The City of Grand Haven lies on Michigan’s west

coast, overlooking Lake Michigan. The picturesque

character of the city is encapsulated at the intersection

of Harbor Drive and Washington Avenue, where a museum, bleachers, and stage overlook the Grand River

as it empties into Lake Michigan. On the other side of

the Grand River is a sand dune known as Dewey Hill.

(Pet. App. 14a, 27a-29a, 84a-85a).

At the crest of Dewey Hill there exists a permanently installed monument. The monument, which is

built into the dune and brandishes an adjustable “feature pole,” was designed, built, and donated to the City

by private citizens. (Pet. App. 1a-2a, 28a-29a, 85a-87a).

The monument and pole were designed and engineered

to retain the soil on Dewey Hill. (Pet. App. 2a, 28a). The

feature pole may be raised as a display, and, in the

raised posture, the pole is viewable from the city’s

downtown business district on Washington Avenue.

(Pet. App. 84a-87a).

Since its inception, the Dewey Hill monument feature pole has taken the form of an anchor, cross, or star.

(Pet. App. 28a). While the feature pole is retracted on

most days, the City historically raised the pole in one

of these three forms for various events and City celebrations. Additionally, the City allowed private citizens

to request display of the feature pole as the anchor,

cross, or star. Citizens making any such request shouldered the costs associated with raising the feature

pole. (Pet. App. 14a).

2

During the October 20, 2014, meeting of the Grand

Haven City Council, Mitch Kahle spoke, claiming to

speak for a group he referred to as “remove the Grand

Haven Cross.” (Pet. App. 29a-30a). Mr. Kahle voiced an

interest in placing items on the feature pole or building

other expressive structures on the dune. (Pet. App. 29a30a). Nearly three months later, on January 5, 2015,

the City Council passed Resolution 15-013 (the “Resolution”). The Resolution provided that, based on the potential environmental impact and the desire to prevent

Dewey Hill from becoming a place of debate and controversy, the dune would not be designated as a public

forum. (Pet. App. 84a-87a). The Resolution further restricted future display of the feature pole. Specifically,

the Resolution provided that, due to the City’s longtime relationship with the U.S. Coast Guard and its

designation as Coast Guard City U.S.A., the feature

pole would only thereafter be raised in its anchor form.

(Pet. App. 84a-87a).

The minutes of the January 5, 2015, City Council

meeting reflect that the Resolution carried by a vote of

three to two. (Pet. App. 83a). Additionally, the minutes

record the rationale adopted by various council members relative to their eventual votes. The members who

voted in favor of the Resolution communicated their

desire to prevent the City from displaying a religious

symbol, as such display would be inappropriate. (Pet.

App. 83a-84a).

Specifically, the minutes provide, “Council Member Monetza stated, if allowed to be a public forum,

Dewey Hill would stop being a beautiful backdrop to

3

the downtown and become a hideous billboard. . . . It

did not fit the mission of the City to get into a protracted and expensive court fight over a supposed right

to use public resources to own and display anyone’s religious symbols.” (Pet. App. 83a). Similarly, “Council

Member Hierholzer said Dewey Hill was an important

part of the City and was a focus of the waterfront. He

would hate to give up control of the dune. . . . The community could place a cross in the community, but would

have to be on private property.” (Pet. App. 84a). Finally,

“Council Member Fritz noted there was more than one

religion in the world and Grand Haven was a diverse

community.” (Pet. App. 84a).

Notably, citizens are still permitted under the Resolution to make a request to raise the feature pole.

However, the feature pole must take the form of an anchor, and the previous cross and star options are no

longer available. (Pet. App. 86a-87a).

First Reformed Church, where several of the Petitioners are members, historically paid to have the feature pole displayed in the form of a cross during its

“Worship on the Waterfront” services, which are held

on the bleachers and stage referenced above. (Pet. App.

29a). Because of the Resolution, First Reformed

Church no longer enjoys the option of requesting the

feature pole in cross form during its services.

Petitioners filed a three-count Complaint in the

Ottawa County Circuit Court on June 12, 2015, alleging that the City violated Article 1, Section 5 of the

Michigan Constitution (Freedom of Speech), Article 1,

4

Section 2 of the Michigan Constitution (Equal Protection), and seeking mandamus and injunctive relief.

(Pet. App. 53a-55a). Both parties filed for summary disposition. Oral argument was held on the cross-motion

on August 10, 2015, and Judge Hulsing entered an

Opinion and Order on August 25, 2015, granting the

City’s motion and dismissing Petitioners’ Complaint in

its entirety. (Pet. App. 13a-24a).

Thereafter, Petitioners appealed to the Michigan

Court of Appeals. That court affirmed the decision of

the circuit court on December 29, 2016. (Pet. App. 1a12a). The Court of Appeals determined that its analysis was limited to the Dewey Hill monument, including

the feature pole, because it was a separate entity from

the waterfront stage and bleachers. To that end, the

Court of Appeals reasoned that, under Pleasant Grove

City v. Summum, 555 U.S. 460, 129 S.Ct. 1125, 172

L.Ed.2d 853 (2009), the Dewey Hill monument was

government speech. For that reason, forum analysis

was inapplicable, and the City could determine the

messages it wished to convey with the Dewey Hill

monument.

Petitioners then sought leave to appeal from the

Michigan Supreme Court, and the request for leave

was denied on October 24, 2017. They now request that

this Honorable Court grant review of the matter.

------------------------------------------------------------------

5

ARGUMENT

I.

MICHIGAN PROPERLY HELD THAT THE

DEWEY HILL MONUMENT FEATURE

POLE IS CONTROLLED BY THE GOVERNMENT SPEECH DOCTRINE ELUCIDATED

IN SUMMUM

A. SUMMUM AND ITS PROGENY ARE

CONTROLLING IN THIS CASE

Summum is this Court’s landmark case regarding

monuments in public parks. In that case, a public park

contained 15 monuments, at least 11 of which were donated by private groups or individuals. Summum, 555

U.S. at 464. The monuments included, most notably for

that case, a Ten Commandments monument privately

donated roughly 40 years before the onset of litigation.

Id. at 465. Respondent was a religious organization

founded four years after the Ten Commandments monument was donated, and it submitted two separate requests to erect a stone monument in the city park

featuring “the Seven Aphorisms of SUMMUM.” Id. Petitioner city denied the requests, explaining that its

practice was to limit park monuments to those that

were directly related to the history of the city or were

donated by groups with longstanding ties to the community. Id. Respondent filed an action, claiming that

the city “had violated the Free Speech Clause of the

First Amendment by accepting the Ten Commandments monument but rejecting the proposed Seven

Aphorisms monument.” Id. at 466.

6

The Court’s analysis centered around speaker

identity. Although it recognized that public parks are a

traditional public forum in which the government is

restrained from imposing content-based restrictions,

the Court determined that monuments in a public

park are generally government speech. Id. at 470. The

Free Speech Clause regulates government censorship

of private speech, but it does not regulate government

speech. Consequently, where government speech occurs, the Free Speech Clause is irrelevant. The Court

explained:

The Free Speech clause restricts government regulation of private speech; it

does not regulate government speech. A

government entity has the right to speak for

itself. It is entitled to say what it wishes, and

to select the views that it wants to express.

Indeed, it is not easy to imagine how government could function if it lacked this freedom.

If every citizen were to have a right to insist

that no one paid by public funds express a

view with which he disagreed, debate over issues of great concern to the public would be

limited to those in the private sector, and the

process of government as we know it radically

transformed.

A government entity may exercise this

same freedom to express its views when

it receives assistance from private

sources for the purpose of delivering a

government-controlled message. [Summum, 555 U.S. at 467-468 (internal quotation

7

marks and citations omitted) (emphasis

added).]

The Summum Court determined that the monuments in the city’s park constituted government

speech. It opined:

There may be situations in which it is difficult

to tell whether a government entity is speaking on its own behalf or is providing a forum

for private speech, but this case does not present such a situation. Permanent monuments displayed on public property

typically represent government speech.

Governments have long used monuments to

speak to the public. Since ancient times,

kings, emperors, and other rulers have

erected statues of themselves to remind their

subjects of their authority and power. Triumphal arches, columns, and other monuments

have been built to commemorate military victories and sacrifices and other events of civic

importance. A monument, by definition, is

a structure that is designed as a means

of expression. When a government entity arranges for the construction of a monument, it

does so because it wishes to convey some

thought or instill some feeling in those who

see the structure.

***

Just as government-commissioned and

government-financed monuments speak

for the government, so do privately financed and donated monuments that the

8

government accepts and displays to the

public on government land. It certainly is

not common for property owners to open up

their property for the installation of permanent monuments that convey a message with

which they do not wish to be associated. And

because property owners typically do not permit the construction of such monuments on

their land, persons who observe donated monuments routinely – and reasonably – interpret

them as conveying some message on the property owner’s behalf. In this context, there is

little chance that observers will fail to

appreciate the identity of the speaker.

This is true whether the monument is located

on private property or on public property, such

as national, state or city park land.

We think it is fair to say that throughout our

Nation’s history, the general government

practice with respect to donated monuments

has been one of selective receptivity. A great

many of the monuments that adorn the Nation’s public parks were financed with private

funds or donated by private parties. . . . By accepting monuments that are privately funded

or donated, government entities save tax dollars and are able to acquire monuments that

they could not have afforded to fund on their

own. [Id. at 470-471 (citations omitted).]

The Court did not adopt a per se rule that permanent monuments displayed on public property are government speech. It allowed for some circumstances in

which a permanent monument could be characterized

9

as private speech and, thus, where forum doctrine is

applicable. For example, “[I]f a town created a monument on which all of its residents (or all those meeting

some other criterion) could place the name of a person

to be honored or some other private message,” forum

analysis may be appropriate. “But as a general matter,

forum analysis simply does not apply to the installation of permanent monuments on public property.” Id.

at 480.

In Walker v. Texas Div., Sons of Confederate Veterans, Inc., 576 U.S. ___, 135 S.Ct. 2239, 192 L.Ed.2d 274

(2015), this Court revisited and applied this doctrine.

Walker involved a dispute regarding Texas’ implementation of specialty license plates. Texas automobile

owners were required to display a license plate, which

could be either a general-issue plate or a specialty license plate. Id. at 2243. Those who desired a specialty

plate could propose a plate design with a slogan, a

graphic, or both. Id. Texas had the ultimate authority

to approve or reject the design and, if approved, make

the design available for display on vehicles registered

in Texas. Id.

The Sons of Confederate Veterans (“SCV”) submitted a proposal for a license plate containing a representation of the Confederate battle flag, and Texas

denied the application based on its potential offensiveness to the public. Id. at 2257-2258. SCV filed an action

against Texas, alleging that denial of SCV’s proposal

violated the Free Speech Clause of the First Amendment.

10

In a 5-4 decision, the Court rejected SCV’s argument. While SCV argued that Texas had created a limited public forum with respect to the license plates, the

Court held that the license plates constituted government speech and, consequently, were not subject to forum analysis. Specifically, the Court wrote:

When government speaks, it is not

barred by the Free Speech Clause from

determining the content of what it says.

That freedom in part reflects the fact that it

is a democratic electoral process that first and

foremost provides a check on government

speech. Thus, government statements (and

government actions and programs that take

the form of speech) do not normally trigger the

First Amendment rules designed to protect

the marketplace of ideas. Instead, the Free

Speech Clause helps produce informed opinions among members of the public, who are

then able to influence the choices of a government that, through words and deeds, will reflect its electoral mandate.

Were the Free Speech Clause interpreted otherwise, government would not work. How

could a city government create a successful recycling program if officials, when writing

householders asking them to recycle cans and

bottles, had to include in the letter a long plea

from the local trash disposal enterprise demanding the contrary? How could a state

government effectively develop programs designed to encourage and provide vaccinations,

if officials also had to voice the perspective of

11

those who oppose this type of immunization?

It is not easy to imagine how government

could function if it lacked the freedom to select

the messages it wishes to convey. [Walker, 135

S.Ct. at 2245-2246 (internal quotation marks

and citations omitted).]

The Walker Court elucidated three factors that, in

addition to “a few other relevant considerations,” it

concluded were determinative to Summum’s result. Id.

at 2247. First, in view of the history of governments

using monuments to speak to the public, the Court observed that a government entity that arranges for the

construction of a monument does so for the purpose of

conveying a thought or instilling a feeling in the

viewer. Id. Second, because it is uncommon for property owners to allow permanent monuments that display a message with which the property owner does not

want to be associated, the Court recognized that an observer of a permanent monument usually and justifiably suspects that the monument conveys a message

on the property owner’s behalf. Id. Third, the Court

found persuasive the city’s control over monument selection and concluded that the general government

practice of selective receptivity throughout history favored a finding that the city effectively controlled the

messages evinced by the monuments in the park. Id.

The Walker Court applied these factors to Texas’

specialty license plates and determined that the license plates constituted government speech. The

Court found that license plates have long “communicated messages from the States.” Id. at 2248. “Second,

12

Texas license plate designs are often closely identified

in the public mind with the State.” Id. (internal quotation marks and citations omitted). “Third, Texas maintains direct control over the messages conveyed on its

specialty plates.” Id. at 2249. Accordingly, forum analysis was not proper, and the Free Speech Clause did

not apply to the specialty plates.

Based on this Court’s jurisprudence, it is readily

apparent that the Dewey Hill monument feature pole

amounts to government speech and, therefore, is not

within the bailiwick of the Free Speech Clause. The

feature pole, which is part-and-parcel with the monument, conveys the government’s message rather than

private speech. In the universe of cases that present

some consternation as to whether speech belongs to

the government or to private parties, this case provides

markedly less difficulty than other cases that have

concluded decisively in the government’s favor. See

Mech v. Sch. Bd. of Palm Beach Cty, Fla., 806 F.3d 1070

(11th Cir. 2015) (applying the three factors set forth by

Summum and Walker to determine that a sign advertising a business that donated to a school constituted

government speech where the sign was hung on a

school fence).

As in Summum, the City’s decision to place the

Dewey Hill monument feature pole on government

property communicated a governmental message, and

that was precisely the City’s intent. Respondent need

not provide this Court with the historical governmental practice of using monuments to convey a message;

the Court already recognized that history when it

13

penned Summum nearly a decade ago. While the pole

may be raised and lowered with more ease than the

Summum monuments could be removed and replaced

that fact does not justify differentiating between permanent monuments and the retractable feature pole

in this case. See United Veterans Mem’l & Patriotic

Ass’n v. City of New Rochelle, 72 F.Supp.3d 468

(S.D.N.Y. 2014), aff ’d by summary order, 615 Fed.Appx.

693 (2d Cir. 2015) (holding that the flags on a flagpole

on public land and maintained by a private organization was government speech). The pole is much closer

to Summum’s permanent monuments than it is to

Walker’s license plates, and even Walker resulted in a

decision for the government.

With respect to Summum’s second factor, there is

no doubt that observers of the feature pole reasonably

interpret the pole to convey a message on the City’s

behalf. Petitioners concede that “[t]he Dewey Hill monument was commissioned and has been displayed in

the City for over 50 years and is considered a historical

and commercial attraction and monument.” (Pet. App.

28a). Similarly, the Resolution provides, “Dewey Hill

has historically been a focal point for community-wide

celebrations including display of the American Flag,

regular performances of the musical fountain, and seasonal celebrations, – such as, Independence Day and

Coast Guard Festival Celebrations.” (Pet. App. 85a). A

reasonable observer cannot possibly conclude that the

feature pole, which is a part of a government monument, on government land, and which has been prominently utilized in government celebrations for more

14

than five decades, is anything but the object through

which the government, and not a private speaker, conveys its messages. A contrary position upends this

Court’s analyses in Summum and Walker.

Regarding the third factor, there is no argument

that suggests anyone other than the City exerts total

control over Dewey Hill, the monument, and the feature pole. The entire practical purpose of the monument is to maintain the ecological integrity of Dewey

Hill, and the display on the feature pole is designed to

work with the soil-retaining hoist. (Pet. App. 28a). Furthermore, Petitioners’ Complaint acknowledges that

the City “promulgates and enforces under the color of

law the policies, practices, and customs governing the

use of Dewey Hill.” (Pet. App. 50a).

The City Council members who voted in favor of

the Resolution understood that the feature pole was

under the City’s purview. Council Member Monetza argued, “It did not fit the mission of the City to get into

a protracted and expensive court fight over a supposed

right to use public resources to own and display anyone’s religious symbols.” (Pet. App. 83a). Council Member Hierholzer recognized Dewey Hill’s importance to

the City and voiced that he “would hate to give up control of the dune.” (Pet. App. 84a). Likewise, Council

Member Fritz stated, “The waterfront should not be

used as a public forum.” (Pet. App. 84a).

In several respects, this case is similar to New Rochelle, 72 F.Supp.3d at 475, where a federal district

court recognized, “Other government speech cases not

15

involving permanent structures demonstrate that the

government-speech doctrine is not as narrow as Plaintiffs contend.” In New Rochelle, the city owned the New

Rochelle Armory. The city government allowed a veterans’ association to oversee a flagpole that was located

on Armory grounds, and this oversight included painting and maintaining the flagpole and the flags adorning it. Id. at 471. At one point, the association replaced

an old American flag and, in addition, hung the Gadsden Flag – featuring the words “Don’t Tread on Me” –

on the pole. When the city directed the association to

remove the Gadsden Flag, the association filed an action claiming the city violated its free speech rights.

In holding for the city, the New Rochelle court determined that the flagpole and the flags decorating it

were government speech. The court explained:

The Armory and its flagpole are owned by the

City, and flags, like monuments, are reasonably interpreted as conveying a message on the

property owner’s behalf. And like the monuments in Summum, the flagpole is located in

a public space used for park and recreation

purpose. Like most public parks, the Armory

is closely identified in the public mind with

the government unit that owns the land – the

City of New Rochelle. [New Rochelle, 72

F.Supp.3d at 474-475.]

Like the flags in New Rochelle, the forms displayed on the Dewey Hill monument feature pole are

temporary. Unlike New Rochelle, the government property is maintained by the City, even if private

16

individuals pay for the cost of raising the pole pursuant to their requests. The ways in which New Rochelle’s

facts differ from the facts in this matter show that government speech is even more apparent here.

The City has historically permitted the feature

pole to be raised as an anchor, a cross, or a star, but it

constrained display of the feature pole to only those options. The City has never allowed any other party to

decorate the pole or modify its form. The displays on

Dewey Hill and the monument feature pole are, and

have always been, controlled by the City. There is no

question that the messages conveyed by the feature

pole are government speech.

B. PETITIONERS’ ARGUMENTS AGAINST

A FINDING OF GOVERNMENT SPEECH

IN THIS CASE ARE UNAVAILING

Petitioners liken the present case to Capitol

Square Review and Advisory Bd. v. Pinette, 515 U.S.

753, 115 S.Ct. 2440, 132 L.Ed.2d 650 (1995). In Pinette,

the Ku Klux Klan applied to place a temporary cross

display on government land in Capitol Square, a large

public space in Columbus, Ohio. The government denied the KKK’s application, claiming display of the

cross would constitute a violation of the Establishment

Clause. Id. at 758. The Court determined that the government violated the First Amendment because proscribing the cross display was content-based

discrimination of speech in a traditional public forum.

Id. at 759-761.

17

Pinette is distinguishable from this case in at least

two respects. First, Pinette featured a traditional public forum. Id. at 759. The inclusion of temporary unattended displays was standard operating procedure for

the traditional public forum. In fact, on the same day

the KKK applied to place the cross in Capitol Square,

the government approved the placement of an unattended menorah display. Id. at 758. Second, the cross

display was unquestionably a private display to be

placed on government property for a limited period –

approximately two weeks – in an area used for temporary private displays. Thus, there is no question that

Pinette involved a private display that would be owned,

placed, and maintained on government land by private

individuals.

Notwithstanding Petitioners’ argument, Pinette is

markedly dissimilar from the present case. While they

contend, “WOTW rents the theater and raises the cross

backdrop for the concert,” the facts show that private

individuals pay the City to raise its feature pole in conjunction with private events. Additionally, it bears repeating that Pinette featured a traditional public

forum, and the feature pole is obviously not a forum at

all, let alone the type of forum in which speakers are

given the greatest constitutional freedoms.

Petitioners err when they conclude that Michigan

summarily rendered a decision for the City based

on Summum’s articulation, “Permanent monuments

displayed on public property typically represent

18

government speech.”1 Summum, 555 U.S. at 470. The

reality is that the three factors gleaned in Summum

and Walker support the City. Despite the clear government speech that exists in this case, Petitioners obfuscate the facts and law in an attempt to salvage for

themselves some semblance of government endorsement for their religious message; that is what this case

is about. The Court reasoned in Walker:

Indeed, a person who displays a message on a

Texas license plate likely intends to convey to

the public that the State has endorsed that

message. If not, the individual could simply

display the message in question in larger letters on a bumper sticker right next to the

plate. But the individual prefers a license

plate design to the purely private speech expressed through bumper stickers. That may

well be because Texas’s license plate designs

convey government agreement with the message displayed. [Walker, 135 S.Ct. at 2249.]

1

Additionally, Petitioners balk at the Michigan Court of Appeals’ finding that the Resolution’s characterization of Dewey Hill

as a limited public forum did not suffice to render Dewey Hill a

limited public forum. But Petitioners’ position leads to a result

that would bind courts to acquiesce to the legal determinations of,

as is often the case with government officials, people who are not

lawyers. In effect, Petitioners demand that a limited public forum

be opened without evidence that the government intended that

such a forum, with its attendant legal nuances, actually exist.

However, because the government only opens a limited public forum by intentionally doing so for the purpose of public discourse,

Cornelius v. NAACP Legal Defense & Ed. Fund, Inc., 473 U.S. 788,

802, 105 S.Ct. 3439, 87 L.Ed.2d 567 (1985), Petitioners’ argument

fails.

19

Likewise, there is nothing that prevents any party

from displaying their preferred symbol on the Grand

River or on the stage and bleachers next to the Grand

River. First Reformed Church is free to display a cross

during Worship on the Waterfront. This case is about

compelling the City to lift high the cross, thus signaling the City’s endorsement of the message Petitioners

seek to convey.

Petitioners’ contention that “the cross conveys no

government message and has no stamp or imprimatur

of the City of Grand Haven anywhere with its visual

periphery” is without merit. With respect to a government message, Petitioners entirely miss the point

when they claim that the City cannot “point to any City

signature or missive transmitted during [Worship on

the Waterfront].” As previously noted, there is no question in this matter that the average reasonable observer would attribute the message from the Dewey

Hill monument and feature pole to be the message of

the City.

Importantly, Petitioners’ argument that “the cross

conveys no government message” requires an interpretation of what message is being conveyed. Not only is

that unnecessary as the purpose of the message is not

one of the requirements in Summum/Walker, but it is

also difficult to ascertain. “[I]t frequently is not possible to identify a single ‘message’ that is conveyed by an

object or structure, and consequently, the thoughts or

sentiments expressed by a government entity that accepts and displays such an object may be quite different from those of either its creator or its donor.”

20

Summum, 555 U.S. at 476. Indeed, “The message conveyed by a monument may change over time. A study

of war memorials found that people reinterpret the

meaning of these memorials as historical interpretations and the society around them changes.” Id. at 477

(internal quotation marks and citation omitted).

The New Rochelle Court clearly understood this

when it explained:

While the Court does not doubt the sincerity

of Plaintiffs’ intention to use the Gadsden

Flag to honor veterans and U.S. military history, the message that the flag conveys cannot

be determined by Plaintiffs or any speaker; it

is in the eye of the beholder. Flags have

great symbolic potential and can hold

multiple meanings at the same time –

meanings that can shift over time, as apparently has happened to the Gadsden

Flag as a result of its association in recent years with the Tea Party movement.

The City has a valid interest in expressing the

messages that it chooses through its flagpole,

and may decide to avoid speech that it believes will be perceived by some of its constituents as divisive. Indeed, because it is the

City – not United Veterans – that is perceived as the speaker, the City is the entity accountable for whatever message

observers perceive in the Armory’s flags.

Plaintiffs are not being prevented from expressing their own views through other channels – they may fly the Gadsden flag on

private property and in public fora. Their

21

private speech is not being inhibited by the

City’s decision to take down the Gadsden

Flag, but the City’s expressive rights would be

diminished were this Court to order the City

to display the flag against its wishes. [New

Rochelle, 72 F.Supp.3d at 477-478 (internal

quotation marks and citations omitted) (emphasis added).]

The City recognized that cultural perceptions of

Christian symbolism have shifted since the practice of

displaying the cross on the feature pole started. The

meeting minutes during discussion of the Resolution

reflect, “Council Member Fritz noted there was more

than one religion in the world and Grand Haven was a

diverse community.” (Pet. App. 84a). The fact that the

City recognized observers may cease identifying the

cross with, for example, an undeniable historical

meaning,2 and rather solely identify it with endorsement of Christianity, does not necessitate the conclusion that the cross conveys a private speaker’s

message. Whatever the meaning an observer took from

the cross on the feature pole, and whatever meaning

First Reformed Church assigned it during Worship on

the Waterfront, the City’s decision to hoist the cross

was always government speech conveying a government message.

2

Van Orden v. Perry, 545 U.S. 677, 125 S.Ct. 2854, 162

L.Ed.2d 607 (2005) (holding that government display of the Ten

Commandments was not a violation of the Establishment Clause

because the Ten Commandments, while religious, had an undeniable historical meaning).

22

Despite Petitioners’ attempt to undermine the

City’s indisputable control over the message of the

Dewey Hill monument feature pole through their characterization of the raised feature pole as merely a

“[t]emporarily displayed backdrop[ ] in [a] municipal

theater[ ],” nothing intrinsically links the bleachers

and stage to the feature pole. In fact, they are separated by the Grand River and Dewey Hill.3 While these

areas are often used in conjunction with one another,

the feature pole can be raised absent any activity on

3

In Section II of their Petition, Petitioners again allude to

the untenable notion that the feature pole is part of the municipal

theater when they highlight Southeastern Promotions, Ltd. v.

Conrad, 420 U.S. 546, 95 S.Ct. 1239, 43 L.Ed.2d 448 (1975), abrogated on other grounds by Thomas v. Chicago Park Dist., 534 U.S.

316, 122 S.Ct. 775, 151 L.Ed.2d 783 (2002), and Satawa v. Macomb

Cty. Rd. Comm’n, 689 F.3d 506 (6th Cir. 2012). Petitioners unavailingly imply that, because the municipal theater comprised of

the bleachers and stage is a traditional public forum, Dewey Hill

and the monument feature pole would also be a traditional public

forum. They stop shy of this conclusion on the basis that “Dewey

Hill cannot accommodate the traffic, nor the variety, accorded a

traditional public forum.”

Petitioners’ implication is not supported by the facts of this

case or by either Southeastern Promotions or Satawa. Southeastern Promotions involved an actual municipal theater without anything resembling Dewey Hill or the feature pole in this case.

Satawa featured a road median that the Sixth Circuit determined

was a traditional public forum. That case is not remotely analogous to the present case, wherein a stage and bleachers are separated from the Dewey Hill monument feature pole by the Grand

River and Dewey Hill itself. Additionally, the feature pole, while

often operating in conjunction with events on the stage across the

river, is not necessarily operated in lock-step with the stage. In

any case, even if Dewey Hill was a traditional public forum, the

message conveyed by the monument and feature pole would still

constitute government speech.

23

the stage, and the stage may be used without raising

the feature pole.

This Court need not fear the problematic hypothetical predicted in Walker’s dissent has come to pass.

This case is far from one wherein a State erects electronic billboards along its highways, posts government

messages on them, and, to raise money, then allows private parties to purchase the right to post messages.

Walker, 135 S.Ct. at 2255-2256 (Alito, J., dissenting).

The feature pole, at its most flexible, displayed a total

of three forms determined by the City, and the only cost

here is that of raising and lowering the pole. “A government entity may exercise [its] freedom to express

its views when it receives assistance from private

sources for the purpose of delivering a governmentcontrolled message. Summum, 555 U.S. at 468. Even if

the City had used the feature pole to obtain a profit,

“[T]he existence of government profit alone is insufficient to trigger forum analysis.” Walker, 135 S.Ct. at

2252.

The holdings of Summum, Walker, and New Rochelle lead to the inescapable conclusion that the feature pole is government speech. For that reason, it is

not subject to First Amendment forum analysis and

limitation. As the governmental entity that owns the

monument and conveys speech on the feature pole, the

City may make a determination regarding the speech

conveyed through that monument. In making that decision, the City need not consider content neutrality,

for, “[w]hen government speaks, it is not barred by the

Free Speech Clause from determining the content of

24

what it says.” Id. at 2245. The lower courts correctly

ascertained that Petitioners failed to state a claim

upon which relief can be granted, and Respondent asserts that this Honorable Court should dismiss Petitioners’ Petition.

II.

PETITIONERS’ ARGUMENT THAT THE

DEWEY HILL MONUMENT FEATURE POLE

IS A LIMITED PUBLIC FORUM IS UNSUPPORTED BY LAW

Despite the fact that the Dewey Hill monument

feature pole unquestionably conveys the City’s message, Petitioners employ a limited public forum analysis. There is no argument by Petitioners that the

feature pole could possibly constitute a traditional

public forum, which exists on governmental property

“traditionally open to the public for expressive activity,

such as public streets and parks[.]” United States v.

Kokinda, 497 U.S. 720, 726, 110 S.Ct. 3115, 111

L.Ed.2d 571 (1990). Nor is there a claim that the feature pole is a designated public forum, “which exists

where government property that has not traditionally

been regarded as a public forum is intentionally

opened up for that purpose,” Walker, 135 S.Ct. at 2250

(internal quotation marks and citation omitted), and,

accordingly, is treated under the same standards as a

traditional public forum. Kincaid v. Gibson, 236 F.3d

342, 348 (6th Cir. 2001) (en banc).

A limited public forum “exists where a government has reserved a forum for certain groups or for the

25

discussion of certain topics.” Id. at 2250 (internal quotation marks and citation omitted). “The government

does not create a public forum by inaction or by permitting limited discourse, but only by intentionally

opening a nontraditional forum for public discourse.”

Cornelius, 473 U.S. at 802. But “[o]nce it has opened a

limited forum . . . the State must respect the lawful

boundaries it has itself set. The State may not exclude

speech where its distinction is not reasonable in light

of the purpose served by the forum.” Rosenberger v.

Rector and Visitors of Univ. of Va., 515 U.S. 819, 829,

115 S.Ct. 2510, 132 L.Ed.2d 700 (1995) (internal quotation marks and citations omitted). To that end, while

the State may engage in content discrimination where

it “preserves the purposes of that limited forum,” discrimination based on viewpoint is “presumed impermissible” where the speech is “otherwise within the

forum’s limitations.” Id. at 830 (citing Perry Ed. Ass’n

v. Perry Local Educators’ Ass’n, 460 U.S. 37, 46, 103

S.Ct. 948, 74 L.Ed.2d 794 (1983)).

Petitioners’ approach to the limited public forum

analysis in this matter is comprised of three steps – all

of which are made on shaky footing. The initial step,

concluding that the feature pole is a limited public forum at all, is a nonstarter for the reasons provided in

this brief in Section I, supra. Petitioners then proceed

to dubiously argue that the anchor, cross, and star are

the seemingly fixed content of the forum, and, worse,

that removing the cross and star and leaving only the

anchor means that the City has discriminated against

viewpoint.

26

The government may not, on the basis of viewpoint, foreclose speech in a limited public forum. See

Perry Ed. Ass’n, 460 U.S. at 46 (stating, “In addition to

time, place, and manner regulations, the state may reserve the forum for its intended purposes, communicative or otherwise, as long as the regulation on speech

is reasonable and not an effort to suppress expression

merely because public officials oppose the speaker’s

view.”). But by arguing that the feature pole is a limited public forum, that the three forms historically displayed constitute the content of the speech in the

forum, and that removal of the cross bars a religious

viewpoint but not a secular viewpoint, Petitioners have

conveniently staked out conditions under which the

City may either display the anchor, cross, and star or,

failing that, close the alleged forum entirely.

While Petitioners allege that “WOTW is among

the members of the class of speakers for whose ‘especial benefit’ the forum was created, and the cross is an

originally included topic,” citing Lamb’s Chapel v. Ctr.

Moriches Union Free Sch. Dist., 508 U.S. 384, 394, 113

S.Ct. 2141, 124 L.Ed.2d 352 (1993), those claims are

unsupported unless the purpose of the supposed forum

can be gleaned. The only purpose articulated by Petitioners is that the alleged limited public forum “was

created to accommodate only three backdrops, and the

speakers who wished to display them.” That position

does not comport with this Court’s First Amendment

jurisprudence. In fact, Petitioners do not even find support in the primary case they rely upon, Freedom from

Religion Found., Inc. v. City of Warren, 873 F.Supp.2d

27

850 (E.D. Mich. 2012), aff ’d on other grounds, 707 F.3d

686 (6th Cir. 2013). In Warren, the government erected

a nativity scene sponsored and provided by the local

Rotary Club as a part of the city’s holiday display.

When Freedom from Religion Foundation advocates

attempted to arrange for the display of a virulently

anti-religious sign, the government refused.

The federal district court upheld the government’s

decision, reasoning, “In a limited public forum, the

[government] may indeed favor celebration, good will,

and decoration over religion-based antagonism, political advertisement, and forced debate. This is true, of

course, so long as the ‘topic’ of the limited public forum

is not religion, politics, or debate.” Warren, 873

F.Supp.2d at 865. On appeal to the Sixth Circuit Court

of Appeals, this analysis was discarded, as the appellate court concluded that the display was government

speech. Warren, 707 F.3d at 698.

Petitioners urge the Court to adopt the reasoning

of the district court rather than that of the appellate

court, but they are not vindicated by the district court’s

opinion. The district court in Warren did not hold that

the government was free to bar any additional holiday

displays; it merely recognized that a display antagonistic to religion may not be compatible with the forum’s purpose of celebration, good will, and decoration.

Petitioners somehow extend that logic to reach their

position here that “the three images available for

28

display, remain the same.” However, there is simply no

basis to support that conclusion.4

Petitioners have intentionally drawn an overlynarrow purpose for the alleged forum. “The State’s

power to restrict speech . . . is not without limits. The

restriction must not discriminate against speech on

the basis of viewpoint, and the restriction must be reasonable in light of the purpose served by the forum.”

Good News Club v. Milford Cent. Sch., 533 U.S. 98, 107108, 121 S.Ct. 2093, 150 L.Ed.2d 151 (2001) (internal

quotation marks and citations omitted). While Petitioners claim that the feature pole’s purpose is as a

municipal theater backdrop qua anchor, cross, or star,

there is no reason to conclude that, if it were a backdrop, the pole would need to be shown in those forms

alone. If those forms are not the purpose of the supposed forum, then restriction to those forms alone is

not reasonable in light of the purpose of the forum.

Petitioners justify their interpretation of permissible content discrimination with a tortured reading of

Rosenberger. The core of Petitioners’ argument is,

“[C]ontent discrimination is permissible if it preserves

the original purposes of the forum. In other words, in

receptivity. Here the content discrimination does not

preserve the purposes of that limited forum: it

4

The lack of knowledge or understanding as to the parameters of the alleged forum lends to the conclusion that a forum does

not exist. If it did, there would be a distinct government action

creating and defining the forum to which Petitioners could point.

29

eliminates it.”5 But, again, the purpose of the alleged

forum would not be as narrow as Petitioners imagine.

If the feature pole was a limited public forum intended

to serve as a backdrop to the municipal theater, there

is no reasonable basis to restrict the form of the feature

pole to the three forms historically used. Thus, while

Petitioners correctly observe that, in such a case, the

City could reject nonconforming content and speakers,

the spectrum of conforming content and speakers

would be much broader than Petitioners suggest.

Petitioners’ argument is not restricted to the facts

of this case. Under Petitioners’ rationale, a city government could establish a city park flagpole as a limited

public forum for the purpose of displaying certain flags

that, upon the request of parkgoers, serve as aesthetic

accoutrements to a picnic in the park and greater city

area; the selection of flags, of course, would be limited

to an American flag, Christian Flag, or a flag featuring

5

Throughout their Petition, Petitioners refer to the concept

of “selective receptivity” in the context of a limited public forum.

Their use of the concept in this manner exhibits a fundamental

misunderstanding of what the phrase means. This Court developed the concept in government speech cases. The entire point of

“selective receptivity” is that the government may, when considering placement on government land of monuments that are privately funded or donated, choose whether or not to accept any

such monument. “The monuments that are accepted, therefore,

are meant to convey and have the effect of conveying a government message, and they thus constitute government speech.”

Summum, 555 U.S. at 472. Contrary to Petitioners’ assertion, receptivity has no place in a limited public forum analysis. They

have conflated the concept of selective receptivity with the notion

that, in a limited public forum, the government may delineate

content-based restrictions based on the purposes of the forum.

30

a star. Petitioners’ reasoning would allow the government to refuse requests from Muslims that want to

hang Islamic flags or from LGBTQ advocates that

want to hang flags supporting LGBTQ issues. This scenario is struck down as unconstitutional on its face,

even before reaching the obvious point that it would be

an impermissible end-run around a potential Establishment Clause violation.

Furthermore, Petitioners err when they claim that

removal of the cross and star, but not the anchor, constitutes viewpoint discrimination. Their reliance on

J.S. v. Holly Area Schs., 749 F.Supp.2d 614 (E.D. Mich.

2010), wherein a partial closure of a limited public forum targeting religious speech was held unconstitutional, is inapposite. In that case, a public school

established a limited public forum for the purpose of

“permitting outside groups or individuals to distribute

approved materials to students.” Id. at 626. The school

imposed a blanket ban on religious material, and the

court determined that the ban constituted viewpoint

discrimination. Id. at 623. In this case, even if the feature pole was subject to forum analysis, the City never

enacted a ban targeted at religion.

The result for which Petitioners advocate is blatantly unconstitutional, even if the Dewey Hill monument feature pole was considered a limited public

forum. Of course, the feature pole is government

speech, and it remains within the government’s bailiwick precisely because the City refuses to allow the parade of horribles that would emerge from the door

Petitioners vie to open. Petitioners have erroneously

31

applied the government-speech concept of “selective receptivity” to their limited public forum analysis, and

they have misapprehended the type of restrictions on

content permitted under Rosenberger and other limited public forum cases. In sum, there is no merit to

Petitioners’ argument that the Dewey Hill monument

feature pole constitutes a limited public forum, and

their Petition should be denied.

III. RESOLUTION 15-013 IS CONSISTENT WITH

EQUAL PROTECTION UNDER THE U.S.

AND MICHIGAN CONSTITUTIONS

As a preliminary matter, Petitioners have not

properly preserved the Equal Protection arguments

they presently bring before the Court. At the level of

first appeal, Petitioners set forth a two-paragraph assertion that their rights under the Equal Protection

Clause were violated by the City. Notably, their argument was not supported by applicable case law. Subsequently, when Petitioners sought leave to appeal from

the Michigan Supreme Court, they again offered no

case law to support their contention; instead, they relied solely on a cursory reference to MCL 37.2101(1)

and Article I, Section 2 of the Michigan Constitution.

Only at this late juncture, before the highest judicial

authority in the country, do Petitioners elect to unveil

their ostensibly full-throated pursuit of an Equal Protection Clause argument. Petitioners abandoned this

basis for relief well before the current appellate level,

and they cannot resuscitate it now.

32

Even assuming, arguendo, that Petitioners did not

abandon their Equal Protection Clause argument,

there exists no arguable basis upon which a reasonable

person could conclude that the City, through Resolution 15-013, violated any equal protection rights held

by Petitioners under the U.S. and Michigan Constitutions. An equal protection claim under the Michigan

Constitution is coterminous with, and secures identical rights as, an equivalent claim under the U.S. Constitution. Harville v. State Plumbing & Heating, Inc.,

218 Mich.App. 302, 305-306, 553 N.W.2d 377 (1996);

Fox v. Michigan Employment Sec. Comm’n, 379 Mich.

579, 153 N.W.2d 644 (1967); In re Contempt of

Dudzinski, 257 Mich.App. 96, 100, 667 N.W.2d 68

(2003) (citing Woodland v. Michigan Citizens Lobby,

423 Mich. 188, 202, 378 N.W.2d 337 (1985)).

An equal protection claim alleges “(1) that a challenged statute or regulation discriminates on its face;

or (2) that, although facially neutral, the regulation

has a disparate impact on a given group; or (3) that the

facially neutral regulation is being unequally administered by the defendants.” Wellmaker v. Dahill, 836

F.Supp. 1375 1385 (N.D. Ohio 1993) (internal citations

omitted). While Petitioners purport in their Complaint

that Resolution 15-013 discriminates against religion

on its face, the facts of this case inexorably lead to the

conclusion that no Equal Protection Clause violation

occurred. (Pet. App. 54a).

At the outset, the Resolution does not regulate the

speech of Petitioners, but, instead, only regulates governmental speech. The Resolution requires that

33

display of the Dewey Hill monument feature pole be

restricted to the form of a Coast Guard anchor. In this

fashion, the City does not treat unequally either a religion compared to another religion or religion compared to non-religion. All individuals or groups seeking

to use the feature pole are denied, except to the extent

they may request that the City raise the pole in the

semblance of an anchor. The only speech the City desires to communicate through the feature pole is that

conveyed by the anchor.

Notwithstanding Petitioners’ assertion that “[t]he

concurrence in Summum suggested” that application

of the Equal Protection Clause “should have survived

the government speech designation,” nothing in Summum supports an equal protection claim on the facts

of this case. While Petitioners recite, “For even if the

Free Speech Clause neither restricts nor protects government speech, government speakers are bound by

the Constitution’s other proscriptions, including those

supplied by the Establishment and Equal Protection

Clauses,” they conveniently omit the previous sentence, which provides, “[R]ecognizing permanent displays on public property as government speech will not

give the government free license to communicate offensive or partisan messages.” Summum, 555 U.S. at 482

(Stevens, J., concurring).

In context, Justice Stevens’ concurrence was designed to assuage fears that, if government speech is

not regulated by the Free Speech Clause, the government could engage in speech that, for example, favored

one religion over another. The point Justice Stevens

34

made – that, whatever the effect of government-speech

doctrine on the Free Speech Clause, other mechanisms

of the Constitution prevent the government from

promulgating constitutionally-odious speech – actually cuts against Petitioners’ attempt to use his words

in this manner. Here, the City restricted display of the

Dewey Hill monument feature pole to the form of an

anchor because, arguably, a decision to display the feature pole in the form of a cross could constitute violation of the Establishment Clause. Furthermore, the

policy to allow display of the feature pole as a cross and

not, for example, as a Hindu symbol, could itself be a

violation of the Equal Protection Clause. Petitioners’

interpretation of Justice Stevens’ reasoning simply

misses the mark, and, in any case, Justice Stevens’ reference to the Equal Protection Clause was part of a

concurrence rather than the Opinion of the Court.

Furthermore, despite the fact that display of the

Dewey Hill monument feature pole is unquestionably

government speech, and notwithstanding Petitioners’

decision to cite Summum in a section entitled, in relevant part “ . . . Whether Government Speech Transcends the Equal Protection Clause . . . ,” Petitioners

then pivot to citations of Rosenberger, Reed,6 and Good

News Club – cases pertaining to private speech and

featuring forum analysis. To that end, the gist of Petitioners’ equal protection argument is that the City

lacked the authority to “enact Resolution 15-013 discriminating against both the religious speech and its

6

Reed v. Town of Gilbert, 576 U.S. ___, 135 S.Ct. 2218, 192

L.Ed.2d 236 (2015).

35

speakers, to deprive them of rights expressly retained

for its secular counterpart in that public accommodation.”

In Golden v. Rossford Exempted Vill. Sch. Dist.,

445 F.Supp.2d 820, 823 (N.D. Ohio 2006), the defendant school district canceled a Christian band’s scheduled performance at a school assembly due to a

potential Establishment Clause violation. The band argued their equal protection rights were violated because they were discriminated against on the basis of

religious identity. Id. at 826. The court determined that

the government could choose to reject the band because the audience might assume that the school endorsed the band’s message. Id. The court reasoned,

“Where the speech is government speech, the government is entitled to exercise control over its presentation, and is not subjected to the strictures of the Equal

Protection Clause, but only to the requirements of the

Establishment Clause.” Id. (internal citations omitted).

The Golden Court determined that, even if the

band established a prima facie equal protection claim,

the compelling state interest of avoiding a potential

Establishment Clause violation justified the school’s

decision. Id. (citing Sloan v. Lemon, 413 U.S. 825, 834,

93 S.Ct. 2982, 37 L.Ed.2d 939 (1973) (existence of Establishment Clause violation bars Equal Protection

claim) and Bannon v. Sch. Dist. of Palm Beach Cty., 387

F.3d 1208, 1216 (11th Cir. 2004) (school had the right

to restrict students’ free speech rights by excluding religious symbols from permanent school-sponsored

36

mural because such symbolic speech could be attributed to the school itself, resulting in Establishment

Clause violation)). The court provided that a governmental actor does not have to have “conclusive, overwhelming evidence of an impending Establishment

Clause violation.” Id. Rather, a “realistic danger” that

citizens would believe the governmental agency endorsing a specific religion is sufficient. Id. (internal citations omitted).

The City has not committed a violation of the

Equal Protection Clause, and there is no allegation by

Petitioners that the City has inhibited exercise of any

religion. Rather, the City arguably took measures to

remedy a potential violation of the Establishment

Clause when it ceased allowing the feature pole to be

raised in the form of a cross. Citizens may continue

participating in religious activities like Worship on the

Waterfront without fear of government intervention,

but the Dewey Hill monument feature pole cannot display a religious symbol that would endorse religion in

potential violation of the Establishment Clause. Seeking to avoid that possible violation is a compelling governmental interest.

IV. THE LOWER COURTS PROPERLY APPLIED

THE APPLICABLE CONSTITUTIONAL JURISPRUDENCE IN THIS CASE

Despite Petitioners’ claims to the contrary, the

prior decisions in this case, including the opinion rendered by the Michigan Court of Appeals, properly

37

applied Summum, Walker, and other case law. The

message conveyed by the feature pole belongs to the

City; it has never been a limited public forum intended

to facilitate private speech. The lower courts recognized that fact, and Petitioners err when they assert

that, if left intact, the Michigan Court of Appeals’ decision will abrogate the perceived speaker test.

In sum, the lower courts did not introduce any new

doctrine, but instead steadfastly applied the precedents of this Court. For that reason, the decision in this

case should not be subjected to further review.

------------------------------------------------------------------

CONCLUSION

WHEREFORE, Respondent respectfully requests

this Honorable Court deny Petitioners’ Petition for

Writ of Certiorari.

Respectfully submitted,

ROBERT A. LUSK

Counsel for Respondent

LUSK ALBERTSON PLC

409 E. Jefferson, Fifth Floor

Detroit, Michigan 48226-4300

(248) 988-5662

RLusk@LuskAlbertson.com