The predicate which founds Pleasant Grove's argument is that its Ten Commandments monument was permissible governmental speech; if that were not so then the entire basis of its position evaporates.  Indeed, the very first question at oral argument, by Chief Justice Roberts, in fact challenged the town's position on that count.  Pleasant Grove's counsel parried in reliance on Van Orden which upheld a Ten Commandments display as permissible government speech on virtually identical facts.  Van Orden was decided on the same day as McReary County v. ACLU of Kentucky, 545 U.S. 844 (2005) where the majority (Stevens, O'Connor, Ginsburg, Souter and Breyer) found a Ten Commandment display unconstitutional, in large measure since it reflected a sectarian purpose in which a governmental authority displays a religious preference.  However, in Van Orden Justice Breyer split with the McReary majority, and wrote a concurring decision which joined Justices Scalia, Thomas, Rehnquist and Kennedy in holding permissible the Ten Commandments display there at issue.  Although not joining in the opinion of the other four justices in the majority, Justice Breyer reasoned that the display in Van Orden did not implicate religious-based divisiveness and therefore passed constitutional muster.  In her book earlier this year, Liberty of Conscience, University of Chicago Professor Martha Nussbaum presciently noted (at p. 263) that "Justice Breyer, by failing to reaffirm the equality/endorsement theory [of McReary] in addition to his own theory, leaves us with a disturbing theoretical gap.  Should we really say that a display that everyone likes and that isn't stirring up trouble, because the offended minorities are too powerless to make trouble, is for that reason constitutional?"
 
Pleasant Grove appears as the first case to march through that gap.  Now, courts are confronting the question of how to level the religious playing field in the public arena to safeguard our treasured heritage of religious pluralism and equality in the face of permissible government-sponsored religious iconography.  Thus, Pleasant Grove is framed as government speech vs. private speech.  But in truth the central issue is a content concern.  As Justice Breyer observed during oral argument, "But what's interesting to me is, are we bound in these cases to apply what I think of as an artificial kind of conceptual framework or are we free to ask what seems to me to be at the heart of the matter?"  Similar content endorsement concerns also drove inquiries by Justices Souter and Ginsburg; whereas Justice Scalia repeatedly shifted the context to the narrow government vs. private speech question, seemed to support Pleasant Grove's position that there are no limits on the government's ability to speak freely, and explicitly stated that the Government "could disfavor homosexuality just as it could disfavor abortion. . . ."  As disturbing as this is as a stand alone comment, its implications are potentially even more draconian when viewed in the light of Justice Scalia's religious Establishment jurisprudence, where he joins Justice Kennedy in believing that the government may endorse certain religious views, but cannot proselytize or coerce; and public displays are not coercion.  (Nussbaum, p. 267).
 
Pleasant Grove's rationale for rejecting the Summum monument is so rife with content based discriminatory potential that reversing here could open the door to virtually limitless government speech, and eviscerate free speech as a rationale for protecting against governmental endorsement of religion.  Pleasant Grove justified its refusal of the Seven Aphorisms monument on the grounds that it permits only monuments which have "historical relevance to the community" or where the donor is "an established Pleasant Grove civic organization with strong ties to the community" or has a "historical connection with Pleasant Grove City."  (In fact, the donor of the Ten Commandments statue had only been in the Pleasant Grove community for two years at the time it made the donation.)  Imagine the following hypothetical: Pleasant Grove accepted for construction in Pioneer Park a Christian icon from the Mormon Church, on the rationale that the Mormon Church is such an integral part of the history of Utah; and then rejects a monument donated by the local Reform Synagogue of a Star of David.  This is not so far fetched, since Justices Scalia and Kennedy have already asserted government endorsement of religion does not violate the Establishment Clause so long as it is not coercive; that at least Justice Scalia views no public display as coercive; if the Court in Pleasant Gove decides that erection of monuments in a public park is government speech and that the government is free to express its disfavor so long as the Establishment Clause is not violated.
 
So, this is why I say that Pleasant Grove is at heart an Establishment case.  Once the constitutional restriction on government endorsement of religion is no longer vigilantly safeguarded, we start down a slippery slope.  Where do we then draw the line at what government can or cannot say about religion? How do we safeguard our cherished right to practice as we personally determine without government's even implicit disfavor?