Similar issues were raised-albeit before public forum doctrine was very developed-and both the Third and DC Circuits held there was no violation of the EC in allowing a papal mass in a public park. And the cert grant in Fowler v RI(1952) was to answer the question of whether a religious event in a public park established religion. Because of selective application of the rule,the court never reached the question. Marc
From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Monday, August 15, 2011 08:07 AM To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? I can imagine at least two grounds on which the use of the park for the baptism could be prohibited without raising serious legal question: 1. I suspect that the river or stream or pond in the park is not generally open to the public for immersion or swimming -- and if so, prohibiting the baptism would be application of a generally applicable conduct restriction that doesn't single out speech. 2. Moreover, far from using a "traditional public forum" -- e.g., a speaker's corner, offering expression to the general public -- the group here wished to engage in a "private" event that would not be "open to the public." Unless the State generally allows use of the park for "not open to the public" events -- which would presumably create a designated or limited, not traditional, public forum -- that might be another ground for denial here. The problem here is that the State (apparently) did not invoke either of these reasons, but instead cited the state constitutional prohibition on the expenditure of funds for "any religious worship." Whether the Widmar/Good News line of cases does or should extend protection beyond religious instruction or discussion to religious worship services, as such, is actually an unresolved question, as Souter's Good News dissent suggests (although I don't think it's difficult to predict how the current Court would come out). A divided Second Circuit panel recently held that a school could exclude religious worship services from a school on Sundays -- at least where that was the predominant use of the school on those days, virtually turning it into a church one day a week: http://tinyurl.com/436mas4. An en banc petition has been filed in that case. If the full court of appeals doesn't reverse, I think the SCOTUS will do so on free speech grounds -- although in my view, FWIW, it should be treated more as a Lukumi free exercise case than a Widmar/Good News free speech case. On Mon, Aug 15, 2011 at 12:20 AM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: Any thoughts on this incident? It sounds to me like the church should win in Widmar v. Vincent – if a university can’t exclude religious worship from a designated public forum, it surely can’t exclude it from a traditional public forum, no? Indeed, the baptism would presumably involve not just speech but also the immersion of a person in water (if that’s the kind of baptism that’s involved); but I take it that this is expressive conduct, and expressive conduct that isn’t being limited because of some harms that supposedly flow from its physical properties (such as the risk of drowning or some such). Or am I missing something here? Eugene Feed: Religion Clause Posted on: Sunday, August 14, 2011 10:46 AM Author: Howard Friedman Subject: Washington State Denies Permit For Baptism Ceremony At State Capitol Park In Olympia, Washington, Heritage Park<http://www.ga.wa.gov/visitor/Parks/HP.htm> is a 24-acre state-owned park next to the state capitol campus. The state will issue permits for events to be held at the park. Today's Bellingham (WA) Herald<http://www.bellinghamherald.com/2011/08/13/2141468/state-rejects-olympia-churchs.html> reports that the state's Department of General Administration has given Reality Church of Olympia a permit for a barbecue and picnic to be held today, but has denied its request to conduct a baptism along with the event. The Department, deciding an appeal of an initial denial, said that the state constitution bars the use of public property for religious worship. The church had argued that its free speech and free exercise rights were infringed by the denial. View article...<http://religionclause.blogspot.com/2011/08/washington-state-denies-permit-for.html> _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
_______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
