Doug is absolutely correct here.
The Govt wins if this is government speech and the Ten C display does not
violate the EC, either because a majority decides the endorsement test does not
apply or, if it does apply, the display does not amount to an endorsement of
religion (perhaps a majority may conclude that the purpose and effect do not
endorse religion, but merely recognize the historical significance of the Ten
Commandments in the local community).
If this is some kind of forum for private speech--even if it is a non-public
forum--Pl wins if this amounts to viewpoint discrimination. But if it is a
non-public forum, and the restriction amounts to content or speaker but not
viewpoint discrimination, the Govt will win if the content or speaker exclusion
is reasonable. So a policy that allows local groups with longstanding ties to
the community preferential access, if used to exclude an outside group with
minimal ties to the community, may be permissible in a non-public forum.
I think this is correct. No?
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
My recent article, Just Another Brick in the Wall: The Establishment Clause as
a Heckler's Veto, is available at SSRN
"And against the constitution I have never raised a storm,It's the scoundrels
who've corrupted it that I want to reform" --Dick Gaughan (from the song,
Thomas Muir of Huntershill)
________________________________
From: Douglas Laycock <dlayc...@virginia.edu>
To: 'Rick Duncan' <nebraskalawp...@yahoo.com>; 'Law & Religion issues for Law
Academics' <religionlaw@lists.ucla.edu>
Sent: Thursday, December 12, 2013 10:05 AM
Subject: RE: Satanists want statue beside Ten Commandments monument
at Oklahoma Legislature
That may well be with respect to passive displays; probably not with respect to
live speakers.
But I inadvertently misled by talking about endorsement. The question under
discussion was whether allowing one group and only one group to erect a display
on government property makes it government speech. The answer to that is still
yes. The nativity scene put up by the preferred group becomes government
speech, even if the endorsement test is overruled and that speech becomes
permissible.
If the nativity scene were private speech, there would be obvious viewpoint
discrimination and a Speech Clause violation. It becomes permissible only if it
is government speech -- and then only if government is permitted to endorse the
truth claims of a particular faith. These are two different issues.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From:religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Wednesday, December 11, 2013 11:03 AM
To: Law & Religion issues for Law Academics
Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma
Legislature
I think Doug is correct that preferential access probably triggers Allegheny
and the endorsement test.
But Justice O'Connor is long gone, and Allegheny is ripe for re-consideration.
I suspect the endorsement test would not survive re-consideration, given the
current lineup on the Court.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
My recent article, Just Another Brick in the Wall: The Establishment Clause as
a Heckler's Veto, is available at SSRN
"And against the constitution I have never raised a storm,It's the scoundrels
who've corrupted it that I want to reform" --Dick Gaughan (from the song,
Thomas Muir of Huntershill)
________________________________
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