I appreciate your prompt response, Eugene. Part of our disagreement clearly relates to our understanding of social reality and I don't know that there is much that can be usefully discussed in that regard. The passage you quote and other language in the majority's opinion describe a world that is so different from the one I experience that it is hard for me to see how this chasm can be crossed.
With regard to your argument that citizens may feel worried about alienating board members or any government official who exercises discretionary power over them in all kinds of private contexts, I have no doubt that this may be true in some circumstances. But I never thought this reality undermined the argument that it would be unacceptably coercive for government officials to incorporate activities that pressure citizens during government meetings or proceedings when they are going to decide issues relating to particular individuals. Surely a board member or a judge may be angry at me because I did not contribute to his political campaign or because I publicly endorsed a different candidate for judicial office. I do not believe that justifies board members requesting political donations from citizens for their political party before citizens speak at public comment or a judge asking counsel and litigants for endorsements as the trial begins. I would think these situations are distinctly coercive even if no one could show that town leaders (or the judge) allocated benefits and burdens based on anyone's willingness to respond positively to these requests. But perhaps the difference between private and official conduct is something that only matters to me. And I do not think the coercion is mitigated in any way if a third party designed by the board or the judge is the person asking for donations or endorsements any more than I think coercion is mitigated if the request to stand, bow one's head and pray is expressed by the clergy invited by the board to offer the prayer. I see no respect for religious liberty in the Town of Greece's policy and no respect for religious liberty in the judicial decision that upheld it against constitutional challenge. Alan From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, July 07, 2014 10:45 AM To: Law & Religion issues for Law Academics Subject: RE: On a different strand of the seamless web The short answer is that I'm persuaded by the majority's analysis of the matter: The analysis would be different if town board members directed the public to participate in the prayers, singled out dissidents for opprobrium, or indicated that their decisions might be influenced by a person's acquiescence in the prayer opportunity. No such thing occurred in the town of Greece. Although board members themselves stood, bowed their heads, or made the sign of the cross during the prayer, they at no point solicited similar gestures by the public. Respondents point to several occasions where audience members were asked to rise for the prayer. These requests, however, came not from town leaders but from the guest ministers, who presumably are accustomed to directing their congregations in this way and might have done so thinking the action was inclusive, not coercive. See App. 69a ("Would you bow your heads with me as we invite the Lord's presence here tonight?"); id., at 93a ("Let us join our hearts and minds together in prayer"); id., at 102a ("Would you join me in a moment of prayer?"); id., at 110a ("Those who are willing may join me now in prayer"). Respondents suggest that constituents might feel pressure to join the prayers to avoid irritating the officials who would be ruling on their petitions, but this argument has no evidentiary support. Nothing in the record indicates that town leaders allocated benefits and burdens based on participation in the prayer, or that citizens were received differently depending on whether they joined the invocation or quietly declined. In no instance did town leaders signal disfavor toward nonparticipants or suggest that their stature in the community was in any way diminished. A practice that classified citizens based on their religious views would violate the Constitution, but that is not the case before this Court. Is there a risk that some people might feel pressured to participate in the prayer? I suppose there is. But there's also a risk that residents who see council members being active in their churches (on their own time), or even being ministers, might feel pressured to show up at council members' churches to ingratiate themselves with council members, or donate to the council members' churches or favorite religious groups. There's certainly a risk that residents who know of council members' deep religious beliefs will avoid criticizing those religions, or religion generally, for fear of alienating the council members. I realize that I'm referring here to council members' behavior outside the council, not their behavior at council meetings; but while this may go to the magnitude of any countervailing interests (such as council members' own free speech and religious freedom rights, as opposed to towns' ability to carry on what appears to be a longstanding tradition for solemnizing the meeting), I think the theoretically coercive pressure is present in all such situations. Indeed, I would think that a person who has a case before the council would be more worried about the blowback from (say) writing a militantly atheist letter to the editor than from not participating in a prayer at a city council meeting. The question is whether these risks are sufficient to actually constitute serious burdens on religious liberty, and I'm inclined to say no. That's especially true for what, according to the Court, appears to be the norm for Town of Greece meetings, in which the minister speaks just to the city council, and doesn't ask audience members to participate in the prayer. But even if the ministers do so ask, I don't think that such a request is, in this context, sufficiently coercive to raise a religious liberty problem, for the reasons the majority mentions. Indeed, many members of many minority religious groups proudly indicate their religious beliefs -- and thus implicitly their not sharing the religious beliefs of the majority -- in their own clothing, hairstyles, and insignia. We expect city councilmembers to treat yarmulke-wearing Jews fairly, even though the yarmulke is constantly visible, including in the very moments that the person is speaking to the council. I think we can reasonably expect (though recognizing that on some occasions people fall short of such expectations) that they will treat fairly those who, some time before their address to the council, did not participate in whatever group prayer was being conducted by the chaplain (especially given that the lack of participation is an action that's considerably less obtrusive than the yarmulke). Perhaps the Justices in the majority and I are mistaken on this score; but it certainly seems to me at least a plausible position, which may explain (to return to the genesis of the thread) why many amicus groups could both oppose actual legal commands as in Hobby Lobby, but not the potential subtle pressure present in Town of Greece. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Monday, July 07, 2014 10:23 AM To: Law & Religion issues for Law Academics Subject: RE: On a different strand of the seamless web It would be helpful (at least to me), Eugene, if you provided a more complete explanation of why you think there is no religious liberty issue in Town of Greece. I see Town of Greece this way. Residents go to town board meetings to participate in public comment to try to influence the Board on matters that are very important to the residents petitioning their government. These matters may often have a particularly significant impact on a relatively small number of residents. The Board will often have considerable political discretion in how it resolves the matters in question. At the beginning of the meeting, residents are asked to participate in a religious exercise by a "chaplain" designated and invited by the city staff under the Board's direction.. They are asked to stand and bow their heads and join in the religious exercise while a member of the clergy prays to G-d in their name (not simply on their behalf). I think the town's policy is intrinsically coercive. Residents will feel pressured and compelled to participate because they will feel that their failure to do so will alienate the very decision-makers they are trying to convince on matters that are important to them. I also think their concerns are not misplaced. In many cases, Board members will be offended and angry if people leave the meeting during the prayer or refuse to stand with the rest of the audience. Government officials often take inappropriate considerations into account in reaching decisions. Indeed, the Constitution is grounded in this basic distrust of government and the need to prevent officials from abusing their power. I think it is always intrinsically coercive when an individual appears before a government official or board exercising discretionary judgment on a matter in order to influence the way the official will decide the matter and the official asks the individual to stand, bow his head and join the official in prayer before hearing the individual's petition. I think this would be true in a court room if the prayer was offered by a judge (or his designated chaplain); it would be true in situations where individuals go to a government office to seek benefits controlled by bureaucrats; it would be true if parents are meeting with their child's public school teacher and are requesting some change in the way the teachers relates to their child - and numerous other examples. Do you think these circumstances aren't coercive, Eugene? Or do you think they are coercive, but the Constitution does not prohibit this kind of coercion? Or is there some other reason why you think these is no burden on religious liberty in Town of Greece. I understand that there are also serious religious equality concerns with the town of Greece's policy. That's a separate question. But the liberty concerns I describe above having nothing to do with people being offended because they hear things they disagree with from the government. Alan From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Sunday, July 06, 2014 9:57 PM To: Law & Religion issues for Law Academics Subject: RE: On a different strand of the seamless web Sandy: I appreciate your point, and it is certainly a view held by many serious scholars. But my point is simply that it isn't at all obvious that this indeed involves an Establishment Clause violation - and that, especially it isn't obvious that this involves religious liberty (Alan's phrase, to which I was specifically responding), and indeed many serious scholars think the two are quite different. Among other things, being ordered to do (or not do) something strikes me as more clearly a matter of "liberty" than hearing things from the government. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Sunday, July 06, 2014 1:31 PM To: Law & Religion issues for Law Academics Subject: Re: On a different strand of the seamless web I think that once one is "hearing from government" offensive theological views, the Establishment Clause is fully implicated. It is prudence, and nothing else, that "legitimizes" "In God We Trust." (That's why the court had to invent an implausible standing doctrine to avoid deciding in Newdow's favor.) But I think there's a role for prudence, as against all principle all the time. Sandy Sent from my iPhone On Jul 6, 2014, at 2:26 PM, "Volokh, Eugene" <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: I take it that the authors of those briefs saw a law requiring someone to do something that they thought was sinful as different from a practice under which people end up hearing things from the government that they might find offensive or alienating. Eugene From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Alan Brownstein Sent: Sunday, July 06, 2014 11:10 AM To: Law & Religion issues for Law Academics Subject: RE: On a different strand of the seamless web I think Chip"s and Doug's key points in their posts are worth emphasizing. Many briefs supporting the town of Greece and the Court's opinion in that case treated the religious liberty arguments of plaintiffs with complete distain. The authors of many of those briefs and the same justices who wrote the opinion upholding coercive and discriminatory prayer practices in Town of Greece insisted that the religious liberty of Hobby Lobby must be protected. As Chip suggests, a tradition, or support for a legal regime, of religious liberty for me but not for you cannot be fairly described as a commitment to religious liberty. An incidental, but not insignificant, result of this kind one-sided support for religious liberty is the burden it places on those of us who try to defend and promote religious liberty and equality for people on both sides of the culture wars. Alan _______________________________________________ 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.
