This is part of a long argument Eugene and I have had, one we will
probably not resolve here. it seems to me quite apparent from the text
of the first amendment that Congress intended to deal with speech and
religion separately, with an understanding that religious proselytizing
is somehow different that political speech. So we need a coherent
theory of why this is so. Why is the state not permitted to claim that
Christianity is false, but may teach that Communism is false? One
possible reason, religious belief is private, political belief is
public. One possible inference, while the state has an interest in
exposing persons to different beliefs about politics, there is no state
interest in challenging private beliefs about religion. Hence,
proselytizing in a public school, to which attendence is required, may
be banned as an invasion of privacy. This is not intended to be a knock
down argument, but until Eugene explains the point of the Establishment
Clause we cannot determine the status of religious proselyzing in public
schools.
>>> [EMAIL PROTECTED] 11/05/04 6:42 PM >>>
Hmm; I had thought Mark's original point was both the second and
potentially the first -- "It does seem fairly clear to me that under the
Establishment Clause a state can say (perhaps must say, given mandatory
attendence) that no pro[se]lytization shall go on in the schools," as he
put it in his original post, or "schools are religious-free zones," as
he put it in a later post.
But in any event, let me focus on Mark's second argument. He
begins by arguing that "the state may also say student debate in school
may be limited to materials that the school may teach and comment on."
I don't see why this should be so. What the state may teach affects the
state's powers. Why should it affect student First Amendment rights?
Say that courts conclude that a state may not endorse Republican
candidates or Democratic candidates (as Scalia suggested might be the
case, in his dissent in NEA v. Finley). Why should this prohibition on
the state translate into reduced free speech rights for students?
He then goes on to point out that the state "creates a
quasi-captive audience situation," and that therefore the state may
forbid religious proselytizing because "it is not speech restrictive, it
is religious restrictive" and "[t]he very text of the first amendment
creates this distinction." But the first argument strikes me as simply
wrong: of course it's speech restrictive, though it's also restrictive
of religious practice. This seems like the same sort of labeling that
the government has long used to justify speech restrictions, and the
Court has generally rejected. As the Justices said in New York Times v.
Sullivan, "[W]e are compelled by neither precedent nor policy to give
any more weight to the epithet "libel" than we have to other "mere
labels" of state law. Like insurrection, contempt, advocacy of unlawful
acts, breach of the peace, obscenity, solicitation of legal business,
and the various other formulae for the repression of expression that
have been challenged in this Court, libel can claim no talismanic
immunity from constitutional limitations." Presumably the label
"religion" doesn't make a speech restriction any less a speech
restriction.
As to the second argument, the text of the first amendment
surely does *not* mandate that individuals' religious speech be treated
worse than other individuals' political speech. The Free Speech Clause
protects speech without regard to religiosity. The Free Exercise Clause
has been interpreted, in my view rightly, as (at least) prohibiting
restrictions on behavior because of its religiosity -- which, I think,
would itself invalidate restrictions on people's religious speech.
The text of the Establishment Clause does indeed prohibit
Congress from establishing a religion; let's say that the Fourteenth
Amendment applies it to the state, and that government endorsement
includes establishment. That still only means that "the very text of
the First Amendment" prohibits the *government* from proselytizing, or
for that matter from posting religious symbols. Mark actually agrees
that this does *not* prohibit individual students from wearing religious
symbols (presumably because the Establishment Clause applies to the
government's speech, not to individuals' speech). Likewise, it does not
prohibit individual students from urging people to convert to some
religion, or to abandon religion.
So the "if the school can't teach it, students may be barred
from saying it" argument seems wrong. The "it is not speech
restrictive, it is religious restrictive" argument seems wrong. The
argument from "the very text of the first amendment" seems wrong. I
still don't see any justification for concluding that religious advocacy
is less constitutionally protected than political advocacy.
Eugene
Mark Graber writes:
> Two issues here.
>
> 1. Must schools restrict proslytizing by students.
>
> 2. May schools constitutionally restrict proslytizing by students.
>
> I'm focusing on the second. Eugene and I agree that religion
> is different from ordinary speech in at least the sense that
> religion may not be the subject of official government
> speech. Politics may. We agree the state may not
> proslytize. It seems to me that the state may also say
> student debate in school may be limited to materials that the
> school may teach and comment on. Another line of argument.
> When the state creates a quasi-captive audience situation,
> seems to be that the state may forbid religious proslytizing.
> It is not speech restrictive, it is religious restrictive.
> The very text of the first amendment creates this distinction.
>
> MAG
>
> >>> [EMAIL PROTECTED] 11/05/04 6:07 PM >>>
> I'm glad that we agree such speech shouldn't be called
> "harassment." But I'm puzzled by Mark's second paragraph.
> Why does the fact that *schools* may not teach religion or
> atheism mean that schools may or even must restrict
> *students* who want to advocate religion or atheism?
>
> Mark says "schools are religious-free zones" -- but
> why? The Establishment Clause may prohibit schools from
> endorsing religion (and, incidentally, from putting up
> religious symbols). Mark agrees that it doesn't prohibit
> students from wearing religious symbols. But he seems to
> think that it prohibits students from expressing the view
> that some should convert to some religion, or should stop
> being religious. What's the justification for this sort of
> strikingly speech-restrictive position?
>
> Eugene
>
>
> > -----Original Message-----
> > From: [EMAIL PROTECTED]
> > [mailto:[EMAIL PROTECTED] On Behalf Of Mark Graber
> > Sent: Friday, November 05, 2004 3:03 PM
> > To: [EMAIL PROTECTED]
> > Subject: Re: Lesser protection for religious advocacy
> >
> >
> > The purpose of the story was simply to point out, as I
> > thought I made clear, that a great many Christians who
> > thought nothing problematic about converting Jews suddenly
> > found speech offensive when they were the converters. I
> > suspect, by the way, that we agree that harrassment is the
> wrong word.
> >
> > I do think religion or anti-religion has no place in the
> > public schools. Schools may teach that progressive taxes are
> > good or that they may be evil. They may teach that the
> > Vietnam War is good or that it was evil.
> > And students must be free to disagree. But schools may
> > neither teach that religion per se or religion in general is
> > good or evil. Thus, I find nothing objectionable in an
> > across the board ban on prolytizing in schools, that Tinker
> > is different partly because Tinker is about political speech.
> > Tnker is also different for a separate reason.
> > Students ought to be permitted to wear various garb
> > identifying themselves as religious. Crosses and stars of
> > david are okay. The line isn't neat, but proslytizing does
> > cross the line. People who go to school are not safe from
> > political ideas, and they must mingle with students who
> > disagree, but schools are religious-free zones.
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