Re: Widmar v. Vincent redux, though in a traditional public forum?
Well ... Don't forget Rehnquist's play in the joints from Locke v. Davey, also a Washington case, by the way. Te state's position seems like a perfectly respectable old-time separationist view. Randy Bezanson U Iowa Sent from my iPad On Aug 14, 2011, at 11:24 PM, Volokh, Eugene vol...@law.ucla.edumailto: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 Parkhttp://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) Heraldhttp://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 mailto:Religionlaw@lists.ucla.edu Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw 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.
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.eduwrote: 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 Parkhttp://www.ga.wa.gov/visitor/Parks/HP.htmis 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) Heraldhttp://www.bellinghamherald.com/2011/08/13/2141468/state-rejects-olympia-churchs.htmlreports 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 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.
Re: Widmar v. Vincent redux, though in a traditional public forum?
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.edumailto: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 Parkhttp://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) Heraldhttp://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.edumailto: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
Re: Widmar v. Vincent redux, though in a traditional public forum?
Big surprise that I disagree with Marty on the Bronx Household of Faith case. The decision should stand. There was no targeting a la Lukumi. Instead, you have the question in the big picture whether public institutions must host weekly worship services for a religious group that turns the institution into a church 1 day/week. Not even remotely like the facts in Good News Club or Rosenberger in my view. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Marty Lederman lederman.ma...@gmail.com Sender: religionlaw-boun...@lists.ucla.edu Date: Mon, 15 Aug 2011 08:07:01 To: Law Religion issues for Law Academicsreligionlaw@lists.ucla.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? ___ 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. ___ 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.
Re: Widmar v. Vincent redux, though in a traditional public forum?
May members of the church group join in prayer during the picnic/barbecue? It's hard to see why baptism would be different (from the state's point of view re: devoting public resources to worship), unless Marty is correct that the body of water is not open for swimming or wading (and no one on the state's side seems to be saying that). Bronx Household involves the hazard of public confusion over sponsorship, especially because the service is weekly; I doubt that this WA case has any similar possibility. On Mon, Aug 15, 2011 at 8:07 AM, Marty Lederman lederman.ma...@gmail.comwrote: 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.eduwrote: 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 Parkhttp://www.ga.wa.gov/visitor/Parks/HP.htmis 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) Heraldhttp://www.bellinghamherald.com/2011/08/13/2141468/state-rejects-olympia-churchs.htmlreports 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 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.
Bronx Household
Not sure how you can disagree with me, Marci, when I haven't yet articulated my views! (I've only predicted that the current Court would rule against the State -- which I assume most here would agree is not a very controversial prognostication.) On the merits, two questions: Is it an EC violation? And, if not, would excluding the religious services be a FS or FE violation? I think they're both close and difficult questions. As to the former: There are two factors present here that give me pause, particularly in combination: (i) The forum is open only on Sundays, effectively meaning that although nominally available to all groups, it will be -- and has been -- dominated by churches of particular religions; and (ii) the buildings in question are elementary schools, and it would be very difficult to provide disclaimers sufficient (cf. Pinette) to assure the young children who attend the schools that the state is not preferring religion -- and Christian religions, in particular. (Details from CTA2 opinion below.) Therefore, I think the EC question is actually a very hard one -- more so than in Good News and Widmar. If it's not an EC violation, New York might not exclude religious services at all, since its sole rationale has been to avoid EC violations -- and thus the FE and FS questions would probably be moot if the Court were to hold that the services don't violate the EC. But if NY were to continue to exclude religious services (say, because the state constitution is more restrictive than the EC), it's also not obvious to me that the exclusion would violate the First Amendment. As for the Free Speech Clause, although the services in question obviously include some speech from certain persons to others (e.g., sermons), that is not all they entail, and it's not those portions of the services that are the source of the exclusion under NY law. Instead, NY bases the exclusion on the collective ritual of the services. I'm not sure it's yet well established that collective ritual and prayer -- particularly if it does not have a (human) audience -- is protected by the Free Speech Clause. Such prayer and ritual is, however, obviously the subject of the Free Exercise Clause, and I don't see how Marci could be correct that there's no targetIng of religious exercise here -- it's the only thing NY excludes on the face of the statute. That still doesn't mean that the *result* in Lukumi governs here, however, since this is merely denial of the use of a public school (one that few other groups use on Sundays), rather than a criminal prohibition. Therefore, there would be a difficult question about where this falls in the spectrum between *Lukumi* and *Locke v. Davey*. All of which is to say that the questions here are close and *should *be difficult to resolve. Which is different from saying that the Court will in fact find it all that difficult. From CTA2 opinion: Bronx Household has held its worship services at P.S. 15, and nowhere else, every Sunday since 2002. [Between 2002 and 2005], at least twenty-one other congregations have used a school building on Sundays as their regular place for worship services. [[T]he number of churches using schools for worship services has increased substantially since [2005].] During these Sunday services, the schools are dominated by church use. *See Capitol* *Square*, 515 U.S. at 777 (O’Connor, J., concurring in part and concurring in the judgment) (“At some point . . . a private religious group may so dominate a public forum that a formal policy of equal access is transformed into a demonstration of approval.”). Because of their large congregations, churches generally use the largest room in the building, or multiple rooms, sometimes for the entire day. . . . In some schools, no other outside organizations use the space. Accordingly, on Sundays, some schools effectively become churches. As a result of this church domination of the space, both church congregants and members of the public identify the churches with the schools. The possibility of perceived endorsement is made particularly acute by the fact that P.S. 15 and other schools used by churches are attended by young and impressionable students, who might easily mistake the consequences of a neutral policy for endorsement. *Cf. Van Orden v. Perry*, 545 U.S. 677, 703 (2005) (Breyer, J., concurring) (distinguishing lawful display of Ten Commandments from cases in which display was “on the grounds of a public school, where, given the impressionability of the young, government must exercise particular care in separating church and state”). Furthermore, the fact that school facilities are principally available for public use on Sundays* *results in an unintended bias in favor of Christian religions, which prescribe Sunday as the principal day for worship services. Jews and Muslims generally cannot use school facilities for their services because the facilities are often unavailable on the days
Hosanna-Tabor and the Ministerial Exception
Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was wondering if anyone has any reactions, in particular whether anyone's views have changed by virtue of the briefs. I haven't seen much discussion online lately. ___ 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.
RE: Hosanna-Tabor and the Ministerial Exception
I have a brief and basically non-substantive post up on Prawfsblawg today about the Law and Religion Professors brief. Also, the Northwestern University Law Review Colloquy will be running several pieces on the case; they should be up on the web site by around the start of Term. I have read some but not all of the briefs (and I haven't read Marci's yet; my apologies). I certainly think Caroline Corbin and Leslie Griffin, the writers of the Law and Religion Professors brief, do an excellent job of giving the best case against the ministerial exception from a doctrinal position, although I also think their position is both too closely focused on the doctrine and not focused enough on broader history (and even within the doctrine I think they misread Jones v. Wolf), and too consequentialist. Again, though, I certainly applaud them for putting their best arguments forward -- although they haven't changed my mind. Paul Horwitz From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 09:53:06 -0400 Subject: Hosanna-Tabor and the Ministerial Exception To: religionlaw@lists.ucla.edu Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was wondering if anyone has any reactions, in particular whether anyone's views have changed by virtue of the briefs. I haven't seen much discussion online lately. ___ 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. ___ 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.
RE: Widmar v. Vincent redux, though in a traditional public forum?
I'm not forgetting that, but my sense is that Locke treated a financial subsidy for the benefit of listeners as quite different from the Widmar et al. scenario of access to government property for speakers and listeners. It certainly didn't say anything to suggest that it was cutting back on Widmar. Or am I missing something there? (Widmar et al. after all also involved old-time separationist view[s], whether respectable or not; but the Court rejected that view there, and even many old-time separationist[s] signed on to the rejection.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P Sent: Monday, August 15, 2011 3:51 AM To: Law Religion issues for Law Academics Cc: religionlaw@lists.ucla.edu Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? Well ... Don't forget Rehnquist's play in the joints from Locke v. Davey, also a Washington case, by the way. Te state's position seems like a perfectly respectable old-time separationist view. Randy Bezanson U Iowa Sent from my iPad On Aug 14, 2011, at 11:24 PM, Volokh, Eugene vol...@law.ucla.edumailto: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 Parkhttp://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) Heraldhttp://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.edumailto: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.
Re: Widmar v. Vincent redux, though in a traditional public forum?
I suppose I should have written religious worship services *standing alone*. If I recall correctly, the premise of the CTA2 decision in *Bronx Household * is that if -- unlike in *Widmar* -- a state generally treats religious expression and nonreligious expression equally, and imposes a restriction only on religious *worship services*, not because of the content or viewpoint of those services, but because they are functionally unlike any of the other permitted uses, the *Widmar/Good News *line of cases does not govern the case. I doubt the SCOTUS will buy it, but that's the theory. On Mon, Aug 15, 2011 at 10:30 AM, Volokh, Eugene vol...@law.ucla.eduwrote: I agree entirely that it matters what grounds the state gives, and grounds 1 and 2 might well have been adequate – but as Marty points out, the state’s grounds were not either 1 or 2, but simply that the group was engaging in religious worship. ** ** But as to whether *Widmar* protects religious worship services as such seemed to be answered “yes” by *Widmar* itself. The unresolved question, as I understand it, is whether in a *nonpublic forum*(or a limited public forum), where content discrimination is allowed but viewpoint discrimination as not, a “religious worship” vs. “nonworship religious speech” line could be drawn. But given the *Widmar* precedent for a designated public forum, why wouldn’t the exclusion of religious worship be a fortiori unconstitutional in a traditional public forum? ** ** Eugene ** ** On Mon, Aug 15, 2011 at 8:07 AM, Marty Lederman lederman.ma...@gmail.com wrote: 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. ___ 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. ___ 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.
Re: Hosanna-Tabor and the Ministerial Exception
Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the view of most professors who teach Law and Religion, and that, instead, there is a very different and *nearly unanimous consensus* about this case . . . among those who spend most of their time working on these issues from a law and religion perspective. Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus among law religion scholars that a religious school should have complete immunity from employment law rules, including anti-retaliation rules, even in cases where (i) the position in question involves secular functions in a commercial setting; (ii) the school has not demonstrated a right to an exemption under *Boy Scouts v. Dale* (either because there's no substantial impact on its expression or because the state interest outweighs that impact, or both); and (iii) the school has not demonstrated a right to an exemption under RFRA (either because there's no significant burden on religious exercise or because the state interest outweighs the burden, or both)? I'm not aware of anything like a consensus on that question. Not even sure what the majority view would be among such scholars. On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz phorw...@hotmail.com wrote: I have a brief and basically non-substantive post up on Prawfsblawg today about the Law and Religion Professors brief. Also, the Northwestern University Law Review Colloquy will be running several pieces on the case; they should be up on the web site by around the start of Term. I have read some but not all of the briefs (and I haven't read Marci's yet; my apologies). I certainly think Caroline Corbin and Leslie Griffin, the writers of the Law and Religion Professors brief, do an excellent job of giving the best case against the ministerial exception from a doctrinal position, although I also think their position is both too closely focused on the doctrine and not focused enough on broader history (and even within the doctrine I think they misread Jones v. Wolf), and too consequentialist. Again, though, I certainly applaud them for putting their best arguments forward -- although they haven't changed my mind. Paul Horwitz -- From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 09:53:06 -0400 Subject: Hosanna-Tabor and the Ministerial Exception To: religionlaw@lists.ucla.edu Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was wondering if anyone has any reactions, in particular whether anyone's views have changed by virtue of the briefs. I haven't seen much discussion online lately. ___ 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. ___ 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. ___ 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.
RE: Widmar v. Vincent redux, though in a traditional public forum?
You are quite right about Locke, Eugene, but I'm not sure that that settles the matter. Washington justified its exclusion of those studying for the ministry on grounds of its own constitutional guarantee of separation of church and state, and the Court accepted that this fell within the State's power via the religion clauses' room in the joints. Logically, that seems analogous. I remember in the old days when I was serving as counsel and then VP at the U of Iowa, that our position was that rooms for religious groups to gather were fine, but holding church services wasn't because it crossed the EC line. I also realize that that was over 30 years ago and much water has gone over the dam, maybe enough to make my old view nothing but a quaint relic. I didn't look specifically at Widmar when I offered the room in the joints thought, so perhaps I'm just tilting at windmills. Yet the logic via Locke seems apt. Randy From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, August 15, 2011 9:45 AM To: Law Religion issues for Law Academics Subject: RE: Widmar v. Vincent redux, though in a traditional public forum? I’m not forgetting that, but my sense is that Locke treated a financial subsidy for the benefit of listeners as quite different from the Widmar et al. scenario of access to government property for speakers and listeners. It certainly didn’t say anything to suggest that it was cutting back on Widmar. Or am I missing something there? (Widmar et al. after all also involved “old-time separationist view[s],” whether “respectable” or not; but the Court rejected that view there, and even many “old-time separationist[s]” signed on to the rejection.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P Sent: Monday, August 15, 2011 3:51 AM To: Law Religion issues for Law Academics Cc: religionlaw@lists.ucla.edu Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? Well ... Don't forget Rehnquist's play in the joints from Locke v. Davey, also a Washington case, by the way. Te state's position seems like a perfectly respectable old-time separationist view. Randy Bezanson U Iowa Sent from my iPad On Aug 14, 2011, at 11:24 PM, Volokh, Eugene vol...@law.ucla.edumailto: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 Parkhttp://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) Heraldhttp://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.edumailto: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
RE: Hosanna-Tabor and the Ministerial Exception
I'm certainly happy to plead guilty to overenthusiastic writing; it's been known to happen on blogs, although I try to avoid it. I would note, though, that the position taken in the brief I mention is not just that the ministerial exception raises difficulties of the kinds Marty mentions below, but that it should be eliminated altogether. My claim may still be too extravagant, but I still feel fairly comfortable saying that this is not the position of most professors who teach and work directly in law and religion. Best, Paul Date: Mon, 15 Aug 2011 11:25:30 -0400 Subject: Re: Hosanna-Tabor and the Ministerial Exception From: icl...@law.gwu.edu To: religionlaw@lists.ucla.edu Marty is certainly correct to question the conclusion in Paul's post. Doug Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a co-author of one of the leading amicus briefs on the petitioner's side. I don't count Bob Tuttle or me in that league, but our most recent writing on this subject might give some comfort (and some unease) to both sides. I think the Hosanna-Tabor case has been superbly briefed on both sides. I expect the case will prove quite difficult for the Supreme Court, and will defy any easy prediction about the outcome or the line-up of Justices. On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman lederman.ma...@gmail.com wrote: Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the view of most professors who teach Law and Religion, and that, instead, there is a very different and nearly unanimous consensus about this case . . . among those who spend most of their time working on these issues from a law and religion perspective. Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus among law religion scholars that a religious school should have complete immunity from employment law rules, including anti-retaliation rules, even in cases where (i) the position in question involves secular functions in a commercial setting; (ii) the school has not demonstrated a right to an exemption under Boy Scouts v. Dale (either because there's no substantial impact on its expression or because the state interest outweighs that impact, or both); and (iii) the school has not demonstrated a right to an exemption under RFRA (either because there's no significant burden on religious exercise or because the state interest outweighs the burden, or both)? I'm not aware of anything like a consensus on that question. Not even sure what the majority view would be among such scholars. On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz phorw...@hotmail.com wrote: I have a brief and basically non-substantive post up on Prawfsblawg today about the Law and Religion Professors brief. Also, the Northwestern University Law Review Colloquy will be running several pieces on the case; they should be up on the web site by around the start of Term. I have read some but not all of the briefs (and I haven't read Marci's yet; my apologies). I certainly think Caroline Corbin and Leslie Griffin, the writers of the Law and Religion Professors brief, do an excellent job of giving the best case against the ministerial exception from a doctrinal position, although I also think their position is both too closely focused on the doctrine and not focused enough on broader history (and even within the doctrine I think they misread Jones v. Wolf), and too consequentialist. Again, though, I certainly applaud them for putting their best arguments forward -- although they haven't changed my mind. Paul Horwitz From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 09:53:06 -0400 Subject: Hosanna-Tabor and the Ministerial Exception To: religionlaw@lists.ucla.edu Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was wondering if anyone has any reactions, in particular whether anyone's views have changed by virtue of the briefs. I haven't seen much discussion online lately. ___ 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. ___ 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
Re: Hosanna-Tabor and the Ministerial Exception
That's true -- that there should be no ministerial exemption at all is probably not the position of *most* professors who teach and work directly in law and religion. (Although I wonder how many of them would conclude that (i) the vast array of statutory exemptions (including RFRA), plus (ii) *Dale*, plus (iii) the prohibition on courts resolving questions of religious truth or doctrine, are not cumulatively sufficient to do all the necessary work.) But even so, that claim is far more modest than the claim that there is a *very *different and *nearly unanimous consensus* *about this case* . . . On Mon, Aug 15, 2011 at 11:59 AM, Paul Horwitz phorw...@hotmail.com wrote: I'm certainly happy to plead guilty to overenthusiastic writing; it's been known to happen on blogs, although I try to avoid it. I would note, though, that the position taken in the brief I mention is not just that the ministerial exception raises difficulties of the kinds Marty mentions below, but that it should be eliminated altogether. My claim may still be too extravagant, but I still feel fairly comfortable saying that this is not the position of most professors who teach and work directly in law and religion. Best, Paul -- Date: Mon, 15 Aug 2011 11:25:30 -0400 Subject: Re: Hosanna-Tabor and the Ministerial Exception From: icl...@law.gwu.edu To: religionlaw@lists.ucla.edu Marty is certainly correct to question the conclusion in Paul's post. Doug Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a co-author of one of the leading amicus briefs on the petitioner's side. I don't count Bob Tuttle or me in that league, but our most recent writing on this subject might give some comfort (and some unease) to both sides. I think the Hosanna-Tabor case has been superbly briefed on both sides. I expect the case will prove quite difficult for the Supreme Court, and will defy any easy prediction about the outcome or the line-up of Justices. On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman lederman.ma...@gmail.com wrote: Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the view of most professors who teach Law and Religion, and that, instead, there is a very different and *nearly unanimous consensus* about this case . . . among those who spend most of their time working on these issues from a law and religion perspective. Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus among law religion scholars that a religious school should have complete immunity from employment law rules, including anti-retaliation rules, even in cases where (i) the position in question involves secular functions in a commercial setting; (ii) the school has not demonstrated a right to an exemption under *Boy Scouts v. Dale* (either because there's no substantial impact on its expression or because the state interest outweighs that impact, or both); and (iii) the school has not demonstrated a right to an exemption under RFRA (either because there's no significant burden on religious exercise or because the state interest outweighs the burden, or both)? I'm not aware of anything like a consensus on that question. Not even sure what the majority view would be among such scholars. On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz phorw...@hotmail.comwrote: I have a brief and basically non-substantive post up on Prawfsblawg today about the Law and Religion Professors brief. Also, the Northwestern University Law Review Colloquy will be running several pieces on the case; they should be up on the web site by around the start of Term. I have read some but not all of the briefs (and I haven't read Marci's yet; my apologies). I certainly think Caroline Corbin and Leslie Griffin, the writers of the Law and Religion Professors brief, do an excellent job of giving the best case against the ministerial exception from a doctrinal position, although I also think their position is both too closely focused on the doctrine and not focused enough on broader history (and even within the doctrine I think they misread Jones v. Wolf), and too consequentialist. Again, though, I certainly applaud them for putting their best arguments forward -- although they haven't changed my mind. Paul Horwitz -- From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 09:53:06 -0400 Subject: Hosanna-Tabor and the Ministerial Exception To: religionlaw@lists.ucla.edu Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was wondering if anyone has any reactions, in particular whether anyone's views have changed by virtue of the briefs. I haven't seen much discussion online lately. ___ To post,
Re:Widmar v. Vincent redux, though in a traditional public forum?Bronx Household
Apologies to Marty for overreading his reference to Lukumi. The facts of Bronx Household indicate that the entire school is transformed into a worship center every Sunday. Students entering to get their homework or for any other reason would be confused regarding their school's support for the religious organization. This moves the case away from the club cases. For this reason, I do not share Marty's assumption about the Court's willingness to overrule and/or to even take the case. If separation means anything historically or contemporaneously, surely it means that a public building can draw the line at being home to full-scale religious worship. Is a courthouse that hosts bar association events required to permit its building to be transformed into a worship center on the relevant Sabbath? Part of the reason this is difficult is because Rosenberger was decided wrongly in my view, but the cases do not mandate a return to the days of establishment when public buildings were worship buildings and vice versa. Marci In a message dated 8/15/2011 11:04:20 A.M. Eastern Daylight Time, lederman.ma...@gmail.com writes: I suppose I should have written religious worship services standing alone. If I recall correctly, the premise of the CTA2 decision in Bronx Household is that if -- unlike in Widmar -- a state generally treats religious expression and nonreligious expression equally, and imposes a restriction only on religious worship services, not because of the content or viewpoint of those services, but because they are functionally unlike any of the other permitted uses, the Widmar/Good News line of cases does not govern the case. I doubt the SCOTUS will buy it, but that's the theory. ___ 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.
RE: Hosanna-Tabor and the Ministerial Exception
Mea culpa! From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 12:09:10 -0400 Subject: Re: Hosanna-Tabor and the Ministerial Exception To: religionlaw@lists.ucla.edu That's true -- that there should be no ministerial exemption at all is probably not the position of most professors who teach and work directly in law and religion. (Although I wonder how many of them would conclude that (i) the vast array of statutory exemptions (including RFRA), plus (ii) Dale, plus (iii) the prohibition on courts resolving questions of religious truth or doctrine, are not cumulatively sufficient to do all the necessary work.) But even so, that claim is far more modest than the claim that there is a very different and nearly unanimous consensus about this case . . . On Mon, Aug 15, 2011 at 11:59 AM, Paul Horwitz phorw...@hotmail.com wrote: I'm certainly happy to plead guilty to overenthusiastic writing; it's been known to happen on blogs, although I try to avoid it. I would note, though, that the position taken in the brief I mention is not just that the ministerial exception raises difficulties of the kinds Marty mentions below, but that it should be eliminated altogether. My claim may still be too extravagant, but I still feel fairly comfortable saying that this is not the position of most professors who teach and work directly in law and religion. Best, Paul Date: Mon, 15 Aug 2011 11:25:30 -0400 Subject: Re: Hosanna-Tabor and the Ministerial Exception From: icl...@law.gwu.edu To: religionlaw@lists.ucla.edu Marty is certainly correct to question the conclusion in Paul's post. Doug Laycock is counsel of record for Hosanna-Tabor, and Michael McConnell is a co-author of one of the leading amicus briefs on the petitioner's side. I don't count Bob Tuttle or me in that league, but our most recent writing on this subject might give some comfort (and some unease) to both sides. I think the Hosanna-Tabor case has been superbly briefed on both sides. I expect the case will prove quite difficult for the Supreme Court, and will defy any easy prediction about the outcome or the line-up of Justices. On Mon, Aug 15, 2011 at 11:15 AM, Marty Lederman lederman.ma...@gmail.com wrote: Paul's Prawfsblawg post is, I think, fairly described as trying to suggest that the Corbin/Griffin amicus brief (which he praises) does not fairly reflect the view of most professors who teach Law and Religion, and that, instead, there is a very different and nearly unanimous consensus about this case . . . among those who spend most of their time working on these issues from a law and religion perspective. Hmmm . . . I wonder, is that true? Is there a nearly unanimous consensus among law religion scholars that a religious school should have complete immunity from employment law rules, including anti-retaliation rules, even in cases where (i) the position in question involves secular functions in a commercial setting; (ii) the school has not demonstrated a right to an exemption under Boy Scouts v. Dale (either because there's no substantial impact on its expression or because the state interest outweighs that impact, or both); and (iii) the school has not demonstrated a right to an exemption under RFRA (either because there's no significant burden on religious exercise or because the state interest outweighs the burden, or both)? I'm not aware of anything like a consensus on that question. Not even sure what the majority view would be among such scholars. On Mon, Aug 15, 2011 at 10:25 AM, Paul Horwitz phorw...@hotmail.com wrote: I have a brief and basically non-substantive post up on Prawfsblawg today about the Law and Religion Professors brief. Also, the Northwestern University Law Review Colloquy will be running several pieces on the case; they should be up on the web site by around the start of Term. I have read some but not all of the briefs (and I haven't read Marci's yet; my apologies). I certainly think Caroline Corbin and Leslie Griffin, the writers of the Law and Religion Professors brief, do an excellent job of giving the best case against the ministerial exception from a doctrinal position, although I also think their position is both too closely focused on the doctrine and not focused enough on broader history (and even within the doctrine I think they misread Jones v. Wolf), and too consequentialist. Again, though, I certainly applaud them for putting their best arguments forward -- although they haven't changed my mind. Paul Horwitz From: lederman.ma...@gmail.com Date: Mon, 15 Aug 2011 09:53:06 -0400 Subject: Hosanna-Tabor and the Ministerial Exception To: religionlaw@lists.ucla.edu Now that all the briefs are in except Doug's reply -- see http://www.americanbar.org/publications/preview_home/10-553.html -- I was wondering if anyone has any reactions, in particular whether anyone's views have changed by virtue of the
Re: Hosanna-Tabor and the Ministerial Exception
Preliminarily, let me say that I sincerely hope there is a wide variety of views among law professors on this issue, and most every other issue in our field. The issue in the Hosanna Tabor in my view is not whether there will be a ministerial exception, but, as Doug puts it, where to draw the line. There are many places to draw the line regardless of whether RFRA, Dale, and the prohibition on courts interpreting religious doctrine are in place. There are also the other relevant doctrines, e.g., courts may question sincerity, even if they may not question doctrine, and in many of these cases there are good reasons to question the sincerity of the proffered reason for the adverse employment action. There is also the question whether accommodation can be appropriate if the religious organization does not have a religious belief that is burdened. The Petruska case is a great example-- she was hired as a chaplain, and there was no prohibition on women chaplains at the Catholic university. Then she was told she was being fired because she was a woman. That is gender discrimination untethered to an actual religious belief involving gender. Judge Becker's original opinion in Petruska says that without an underlying religious belief, the ministerial exception is not legitimate. The subsequent panel opinion, which vacated his decision and was entered after he passed away, treats the issues as simply untouchable by the courts. The EEOC's brief is one of the most intelligently argued briefs filed in a religion case by the DOJ in recent memory, so there is a lot for the Court to consider, which makes it impossible to predict outcome. Marci In a message dated 8/15/2011 12:13:54 P.M. Eastern Daylight Time, lederman.ma...@gmail.com writes: That's true -- that there should be no ministerial exemption at all is probably not the position of most professors who teach and work directly in law and religion. (Although I wonder how many of them would conclude that (i) the vast array of statutory exemptions (including RFRA), plus (ii) Dale, plus (iii) the prohibition on courts resolving questions of religious truth or doctrine, are not cumulatively sufficient to do all the necessary work.) But even so, that claim is far more modest than the claim that there is a very different and nearly unanimous consensus about this case . . . ___ 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.
Establishment Clause, equal access, and confusion
I've never seen the force of concerns about confusion about government endorsement created by equal access proposals, especially when there's time to explain things to the confused people. Schools' job is to dispel confusion among students about various things. They have lots of opportunity to do it. How hard is it to put up signs - and, if necessary, even make an announcement in class or in some handouts - that say something like: Our school system opens up space after hours to any community group that wants to use it. This is our way of helping people speak on whatever subjects they want to speak about. All groups are equally entitled to use this space, even if they say things that other people might disagree with - that's what promoting free speech is all about. So please keep in mind that the things you see said and displayed here after hours don't come from the school system or the government - they come from the private groups that are using this space. Not a complicated message, and in fact a message that's worth teaching to the students generally. (Of course, this is just what I cobbled together in a couple of minutes; naturally, this can be edited to be clearer.) And if the constitutional norm is equal treatment, which I think it should be, then the answer to the argument that the government may reject the norm because of the risk of confusion is that there's a less restrictive means of avoiding the confusion: educating the public about the equal-access nature of the program. This problem, incidentally, likewise comes up with the statutes barring teachers from teaching in religious garb (which might be broad enough to cover yarmulkes and headscarves, though most clearly applies to nun's habits and the like). The statutes were upheld by two lower courts a few decades ago, but a more recent lower court decision struck one down, I think, and rightly so. Any concerns about confusion on the students' part can be easily dispelled, I think, by simply teaching students - and it shouldn't take long - that in our society different people have different beliefs, that some people believe that they need to wear particular religious clothing, and that these beliefs are the teachers' own, not the schools'. Again, not a complicated message, and one that's worth teaching in any event. To be sure, some people might remain confused even after this, and might insist on believing that the government is endorsing religion even when the government accurately and clearly reports that it simply provides equal access. But this possibility that a few people might be confused, even when the government makes clear that all it's offering is equal access - just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on - doesn't strike me as reason enough to reject equal access. Eugene Marci Hamilton writes: Apologies to Marty for overreading his reference to Lukumi. The facts of Bronx Household indicate that the entire school is transformed into a worship center every Sunday. Students entering to get their homework or for any other reason would be confused regarding their school's support for the religious organization. This moves the case away from the club cases. For this reason, I do not share Marty's assumption about the Court's willingness to overrule and/or to even take the case. If separation means anything historically or contemporaneously, surely it means that a public building can draw the line at being home to full-scale religious worship. Is a courthouse that hosts bar association events required to permit its building to be transformed into a worship center on the relevant Sabbath? Part of the reason this is difficult is because Rosenberger was decided wrongly in my view, but the cases do not mandate a return to the days of establishment when public buildings were worship buildings and vice versa. ___ 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.
RE: Widmar v. Vincent redux, though in a traditional public forum?
I suppose I'm somewhere between Marty and Eugene on this issue. I think Eugene is correct that Widmar and Good News Club largely resolve this issue - at least an appellate court would be justified in concluding that they controlled the question. The distinction that Marty draws, however, is a critical one. If laws discriminating against religious conduct -- ritual, worship or practice - standing alone will be construed to be laws directed at speech for free speech doctrine purposes because there is some expressive dimension to these activities, then statutory religious accommodations that exempt religious exercise must also be construed to be laws directed at speech and subject to the same standard of review applied to laws that discriminate against religious expression. However, there may be five justices on the Court who would support a version of free speech doctrine that requires reviewing laws that discriminate against religious expression more rigorously than laws that favor religious expression (and in doing so discriminate against non-religious expression.) Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, August 15, 2011 8:02 AM To: Law Religion issues for Law Academics Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? I suppose I should have written religious worship services standing alone. If I recall correctly, the premise of the CTA2 decision in Bronx Household is that if -- unlike in Widmar -- a state generally treats religious expression and nonreligious expression equally, and imposes a restriction only on religious worship services, not because of the content or viewpoint of those services, but because they are functionally unlike any of the other permitted uses, the Widmar/Good News line of cases does not govern the case. I doubt the SCOTUS will buy it, but that's the theory. On Mon, Aug 15, 2011 at 10:30 AM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I agree entirely that it matters what grounds the state gives, and grounds 1 and 2 might well have been adequate - but as Marty points out, the state's grounds were not either 1 or 2, but simply that the group was engaging in religious worship. But as to whether Widmar protects religious worship services as such seemed to be answered yes by Widmar itself. The unresolved question, as I understand it, is whether in a nonpublic forum (or a limited public forum), where content discrimination is allowed but viewpoint discrimination as not, a religious worship vs. nonworship religious speech line could be drawn. But given the Widmar precedent for a designated public forum, why wouldn't the exclusion of religious worship be a fortiori unconstitutional in a traditional public forum? Eugene ___ 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.
RE: Widmar v. Vincent redux, though in a traditional public forum?
Well, the state constitutional defense for the exclusion was raised in Widmar as well and rejected; and the worship-nonworship line was rejected, too. So I don't think the play-in-the-joints argument is consistent with Widmar. Davey's response to Rosenberger was simply that, The purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to 'encourage a diversity of views from private speakers.' Our cases dealing with speech forums are simply inapplicable. I'm skeptical about this analysis; but even accepting it, as we must, this case is on the Rosenberger/Widmar side, not the Davey side, because according to traditional public forum analysis one purpose of parks is precisely to encourage a diversity of views from private speakers. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P Sent: Monday, August 15, 2011 8:32 AM To: Law Religion issues for Law Academics Subject: RE: Widmar v. Vincent redux, though in a traditional public forum? You are quite right about Locke, Eugene, but I'm not sure that that settles the matter. Washington justified its exclusion of those studying for the ministry on grounds of its own constitutional guarantee of separation of church and state, and the Court accepted that this fell within the State's power via the religion clauses' room in the joints. Logically, that seems analogous. I remember in the old days when I was serving as counsel and then VP at the U of Iowa, that our position was that rooms for religious groups to gather were fine, but holding church services wasn't because it crossed the EC line. I also realize that that was over 30 years ago and much water has gone over the dam, maybe enough to make my old view nothing but a quaint relic. I didn't look specifically at Widmar when I offered the room in the joints thought, so perhaps I'm just tilting at windmills. Yet the logic via Locke seems apt. Randy From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, August 15, 2011 9:45 AM To: Law Religion issues for Law Academics Subject: RE: Widmar v. Vincent redux, though in a traditional public forum? I'm not forgetting that, but my sense is that Locke treated a financial subsidy for the benefit of listeners as quite different from the Widmar et al. scenario of access to government property for speakers and listeners. It certainly didn't say anything to suggest that it was cutting back on Widmar. Or am I missing something there? (Widmar et al. after all also involved old-time separationist view[s], whether respectable or not; but the Court rejected that view there, and even many old-time separationist[s] signed on to the rejection.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P Sent: Monday, August 15, 2011 3:51 AM To: Law Religion issues for Law Academics Cc: religionlaw@lists.ucla.edu Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? Well ... Don't forget Rehnquist's play in the joints from Locke v. Davey, also a Washington case, by the way. Te state's position seems like a perfectly respectable old-time separationist view. Randy Bezanson U Iowa Sent from my iPad On Aug 14, 2011, at 11:24 PM, Volokh, Eugene vol...@law.ucla.edumailto: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 Parkhttp://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) Heraldhttp://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
Re: Establishment Clause, equal access, and confusion
And how would the school explain to six-year-old students why the school is open to such uses only on Sundays; and why, just coincidently, the overwhelmingly predominant uses of the school are for Christian religious services? Don't get me wrong -- this doesn't mean that I necessary think there would be an EC violation. But I am inclined to think that, at a minimum, the school must (but cf. Braunfeld) expand its access policy beyond Sundays; provide very robust disclaimers (per the controlling opinions in Pinette) -- disclaimers explicable to young students (more of a challenge than Eugene suggests); and perhaps even make special efforts to ensure that an array of groups, religious and nonreligious, are encouraged to make use of the school. On Mon, Aug 15, 2011 at 12:40 PM, Volokh, Eugene vol...@law.ucla.eduwrote: I’ve never seen the force of concerns about confusion about government endorsement created by equal access proposals, especially when there’s time to explain things to the confused people. Schools’ *job* is to dispel confusion among students about various things. They have lots of opportunity to do it. How hard is it to put up signs – and, if necessary, even make an announcement in class or in some handouts – that say something like: ** ** Our school system opens up space after hours to any community group that wants to use it. This is our way of helping people speak on whatever subjects they want to speak about. All groups are equally entitled to use this space, even if they say things that other people might disagree with – that’s what promoting free speech is all about. So please keep in mind that the things you see said and displayed here after hours don’t come from the school system or the government – they come from the private groups that are using this space. ** ** Not a complicated message, and in fact a message that’s worth teaching to the students generally. (Of course, this is just what I cobbled together in a couple of minutes; naturally, this can be edited to be clearer.) And if the constitutional norm is equal treatment, which I think it should be, then the answer to the argument that the government may reject the norm because of the risk of confusion is that there’s a less restrictive means of avoiding the confusion: educating the public about the equal-access nature of the program. ** ** This problem, incidentally, likewise comes up with the statutes barring teachers from teaching in religious garb (which might be broad enough to cover yarmulkes and headscarves, though most clearly applies to nun’s habits and the like). The statutes were upheld by two lower courts a few decades ago, but a more recent lower court decision struck one down, I think, and rightly so. Any concerns about confusion on the students’ part can be easily dispelled, I think, by simply teaching students – and it shouldn’t take long – that in our society different people have different beliefs, that some people believe that they need to wear particular religious clothing, and that these beliefs are the teachers’ own, not the schools’. Again, not a complicated message, and one that’s worth teaching in any event. ** ** To be sure, some people might remain confused even after this, and might insist on believing that the government is endorsing religion even when the government accurately and clearly reports that it simply provides equal access. But this possibility that a few people might be confused, even when the government makes clear that all it’s offering is equal access – just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on – doesn’t strike me as reason enough to reject equal access. ** ** Eugene ** ** Marci Hamilton writes: ** ** Apologies to Marty for overreading his reference to *Lukumi*. The facts of *Bronx Household* indicate that the entire school is transformed into a worship center every Sunday. Students entering to get their homework or for any other reason would be confused regarding their school's support for the religious organization. This moves the case away from the club cases. For this reason, I do not share Marty's assumption about the Court's willingness to overrule and/or to even take the case. If separation means anything historically or contemporaneously, surely it means that a public building can draw the line at being home to full-scale religious worship. Is a courthouse that hosts bar association events required to permit its building to be transformed into a worship center on the relevant Sabbath? Part of the reason this is difficult is because *Rosenberger *was decided wrongly in my view, but the cases do not mandate a return to the days of establishment when public buildings were worship
Re: Widmar v. Vincent redux, though in a traditional public forum?
What if, as is likely the case, New York's purpose in opening its schools for private uses on Sundays is not to encourage a diversity of views from private speakers, but instead simply to generate income, whether the uses are for speech or otherwise? On Mon, Aug 15, 2011 at 12:43 PM, Volokh, Eugene vol...@law.ucla.eduwrote: Well, the state constitutional defense for the exclusion was raised in *Widmar* as well and rejected; and the worship-nonworship line was rejected, too. So I don’t think the play-in-the-joints argument is consistent with *Widmar*. ** ** *Davey*’s response to *Rosenberger *was simply that, “The purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to ‘encourage a diversity of views from private speakers.’ Our cases dealing with speech forums are simply inapplicable.” I’m skeptical about this analysis; but even accepting it, as we must, this case is on the * Rosenberger*/*Widmar* side, not the *Davey* side, because according to traditional public forum analysis one purpose of parks is precisely to “encourage a diversity of views from private speakers.” ** ** Eugene ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Bezanson, Randall P *Sent:* Monday, August 15, 2011 8:32 AM *To:* Law Religion issues for Law Academics *Subject:* RE: Widmar v. Vincent redux, though in a traditional public forum? ** ** You are quite right about Locke, Eugene, but I'm not sure that that settles the matter. Washington justified its exclusion of those studying for the ministry on grounds of its own constitutional guarantee of separation of church and state, and the Court accepted that this fell within the State's power via the religion clauses' room in the joints. Logically, that seems analogous. I remember in the old days when I was serving as counsel and then VP at the U of Iowa, that our position was that rooms for religious groups to gather were fine, but holding church services wasn't because it crossed the EC line. I also realize that that was over 30 years ago and much water has gone over the dam, maybe enough to make my old view nothing but a quaint relic. I didn't look specifically at Widmar when I offered the room in the joints thought, so perhaps I'm just tilting at windmills. Yet the logic via Locke seems apt. Randy -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [ vol...@law.ucla.edu] *Sent:* Monday, August 15, 2011 9:45 AM *To:* Law Religion issues for Law Academics *Subject:* RE: Widmar v. Vincent redux, though in a traditional public forum? I’m not forgetting that, but my sense is that *Locke*treated a financial subsidy for the benefit of listeners as quite different from the *Widmar *et al. scenario of access to government property for speakers and listeners. It certainly didn’t say anything to suggest that it was cutting back on *Widmar*. Or am I missing something there? (*Widmar *et al. after all also involved “old-time separationist view[s],” whether “respectable” or not; but the Court rejected that view there, and even many “old-time separationist[s]” signed on to the rejection.) Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Bezanson, Randall P *Sent:* Monday, August 15, 2011 3:51 AM *To:* Law Religion issues for Law Academics *Cc:* religionlaw@lists.ucla.edu *Subject:* Re: Widmar v. Vincent redux, though in a traditional public forum? Well ... Don't forget Rehnquist's play in the joints from Locke v. Davey, also a Washington case, by the way. Te state's position seems like a perfectly respectable old-time separationist view. Randy Bezanson U Iowa Sent from my iPad On Aug 14, 2011, at 11:24 PM, Volokh, Eugene 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
Re: Widmar v. Vincent redux, though in a traditional public forum?
Isn't the kids will get the wrong impression defense explicitly rejected in Good News -though(I don't have access to the decision)perhaps only by a plurality. Marc From: Volokh, Eugene [mailto:vol...@law.ucla.edu] Sent: Monday, August 15, 2011 12:43 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: Widmar v. Vincent redux, though in a traditional public forum? Well, the state constitutional defense for the exclusion was raised in Widmar as well and rejected; and the worship-nonworship line was rejected, too. So I don’t think the play-in-the-joints argument is consistent with Widmar. Davey’s response to Rosenberger was simply that, “The purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to ‘encourage a diversity of views from private speakers.’ Our cases dealing with speech forums are simply inapplicable.” I’m skeptical about this analysis; but even accepting it, as we must, this case is on the Rosenberger/Widmar side, not the Davey side, because according to traditional public forum analysis one purpose of parks is precisely to “encourage a diversity of views from private speakers.” Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P Sent: Monday, August 15, 2011 8:32 AM To: Law Religion issues for Law Academics Subject: RE: Widmar v. Vincent redux, though in a traditional public forum? You are quite right about Locke, Eugene, but I'm not sure that that settles the matter. Washington justified its exclusion of those studying for the ministry on grounds of its own constitutional guarantee of separation of church and state, and the Court accepted that this fell within the State's power via the religion clauses' room in the joints. Logically, that seems analogous. I remember in the old days when I was serving as counsel and then VP at the U of Iowa, that our position was that rooms for religious groups to gather were fine, but holding church services wasn't because it crossed the EC line. I also realize that that was over 30 years ago and much water has gone over the dam, maybe enough to make my old view nothing but a quaint relic. I didn't look specifically at Widmar when I offered the room in the joints thought, so perhaps I'm just tilting at windmills. Yet the logic via Locke seems apt. Randy From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, August 15, 2011 9:45 AM To: Law Religion issues for Law Academics Subject: RE: Widmar v. Vincent redux, though in a traditional public forum? I’m not forgetting that, but my sense is that Locke treated a financial subsidy for the benefit of listeners as quite different from the Widmar et al. scenario of access to government property for speakers and listeners. It certainly didn’t say anything to suggest that it was cutting back on Widmar. Or am I missing something there? (Widmar et al. after all also involved “old-time separationist view[s],” whether “respectable” or not; but the Court rejected that view there, and even many “old-time separationist[s]” signed on to the rejection.) Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P Sent: Monday, August 15, 2011 3:51 AM To: Law Religion issues for Law Academics Cc: religionlaw@lists.ucla.edu Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? Well ... Don't forget Rehnquist's play in the joints from Locke v. Davey, also a Washington case, by the way. Te state's position seems like a perfectly respectable old-time separationist view. Randy Bezanson U Iowa Sent from my iPad On Aug 14, 2011, at 11:24 PM, Volokh, Eugene vol...@law.ucla.edumailto: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
Re: Widmar v. Vincent redux, though in a traditional public forum?
The rule in bronx household is that schools can be rented whenever not in use. They are less frequently in use on sundays, but lots of schools can be rented on Saturday or Friday nights. Marc From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Monday, August 15, 2011 12:54 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? What if, as is likely the case, New York's purpose in opening its schools for private uses on Sundays is not to encourage a diversity of views from private speakers, but instead simply to generate income, whether the uses are for speech or otherwise? On Mon, Aug 15, 2011 at 12:43 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Well, the state constitutional defense for the exclusion was raised in Widmar as well and rejected; and the worship-nonworship line was rejected, too. So I don’t think the play-in-the-joints argument is consistent with Widmar. Davey’s response to Rosenberger was simply that, “The purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to ‘encourage a diversity of views from private speakers.’ Our cases dealing with speech forums are simply inapplicable.” I’m skeptical about this analysis; but even accepting it, as we must, this case is on the Rosenberger/Widmar side, not the Davey side, because according to traditional public forum analysis one purpose of parks is precisely to “encourage a diversity of views from private speakers.” Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P Sent: Monday, August 15, 2011 8:32 AM To: Law Religion issues for Law Academics Subject: RE: Widmar v. Vincent redux, though in a traditional public forum? You are quite right about Locke, Eugene, but I'm not sure that that settles the matter. Washington justified its exclusion of those studying for the ministry on grounds of its own constitutional guarantee of separation of church and state, and the Court accepted that this fell within the State's power via the religion clauses' room in the joints. Logically, that seems analogous. I remember in the old days when I was serving as counsel and then VP at the U of Iowa, that our position was that rooms for religious groups to gather were fine, but holding church services wasn't because it crossed the EC line. I also realize that that was over 30 years ago and much water has gone over the dam, maybe enough to make my old view nothing but a quaint relic. I didn't look specifically at Widmar when I offered the room in the joints thought, so perhaps I'm just tilting at windmills. Yet the logic via Locke seems apt. Randy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edumailto:vol...@law.ucla.edu] Sent: Monday, August 15, 2011 9:45 AM To: Law Religion issues for Law Academics Subject: RE: Widmar v. Vincent redux, though in a traditional public forum? I’m not forgetting that, but my sense is that Locke treated a financial subsidy for the benefit of listeners as quite different from the Widmar et al. scenario of access to government property for speakers and listeners. It certainly didn’t say anything to suggest that it was cutting back on Widmar. Or am I missing something there? (Widmar et al. after all also involved “old-time separationist view[s],” whether “respectable” or not; but the Court rejected that view there, and even many “old-time separationist[s]” signed on to the rejection.) Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P Sent: Monday, August 15, 2011 3:51 AM To: Law Religion issues for Law Academics Cc: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? Well ... Don't forget Rehnquist's play in the joints from Locke v. Davey, also a Washington case, by the way. Te state's position seems like a perfectly respectable old-time separationist view. Randy Bezanson U Iowa Sent from my iPad On Aug 14, 2011, at 11:24 PM, Volokh, Eugene vol...@law.ucla.edumailto: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
Re: Widmar v. Vincent redux, though in a traditional public forum?
thanks, Marc. Sorry about that -- the opinion states that the fact that school facilities are *principally* available for public use on Sundays* *results in an unintended bias in favor of Christian religions. On Mon, Aug 15, 2011 at 1:00 PM, Marc Stern ste...@ajc.org wrote: The rule in bronx household is that schools can be rented whenever not in use. They are less frequently in use on sundays, but lots of schools can be rented on Saturday or Friday nights. Marc *From*: Marty Lederman [mailto:lederman.ma...@gmail.com] *Sent*: Monday, August 15, 2011 12:54 PM *To*: Law Religion issues for Law Academics religionlaw@lists.ucla.edu *Subject*: Re: Widmar v. Vincent redux, though in a traditional public forum? What if, as is likely the case, New York's purpose in opening its schools for private uses on Sundays is not to encourage a diversity of views from private speakers, but instead simply to generate income, whether the uses are for speech or otherwise? On Mon, Aug 15, 2011 at 12:43 PM, Volokh, Eugene vol...@law.ucla.eduwrote: Well, the state constitutional defense for the exclusion was raised in *Widmar* as well and rejected; and the worship-nonworship line was rejected, too. So I don’t think the play-in-the-joints argument is consistent with *Widmar*. ** ** *Davey*’s response to *Rosenberger *was simply that, “The purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to ‘encourage a diversity of views from private speakers.’ Our cases dealing with speech forums are simply inapplicable.” I’m skeptical about this analysis; but even accepting it, as we must, this case is on the * Rosenberger*/*Widmar* side, not the *Davey* side, because according to traditional public forum analysis one purpose of parks is precisely to “encourage a diversity of views from private speakers.” ** ** Eugene ** ** *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Bezanson, Randall P *Sent:* Monday, August 15, 2011 8:32 AM *To:* Law Religion issues for Law Academics *Subject:* RE: Widmar v. Vincent redux, though in a traditional public forum? ** ** You are quite right about Locke, Eugene, but I'm not sure that that settles the matter. Washington justified its exclusion of those studying for the ministry on grounds of its own constitutional guarantee of separation of church and state, and the Court accepted that this fell within the State's power via the religion clauses' room in the joints. Logically, that seems analogous. I remember in the old days when I was serving as counsel and then VP at the U of Iowa, that our position was that rooms for religious groups to gather were fine, but holding church services wasn't because it crossed the EC line. I also realize that that was over 30 years ago and much water has gone over the dam, maybe enough to make my old view nothing but a quaint relic. I didn't look specifically at Widmar when I offered the room in the joints thought, so perhaps I'm just tilting at windmills. Yet the logic via Locke seems apt. Randy -- *From:* religionlaw-boun...@lists.ucla.edu [ religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [ vol...@law.ucla.edu] *Sent:* Monday, August 15, 2011 9:45 AM *To:* Law Religion issues for Law Academics *Subject:* RE: Widmar v. Vincent redux, though in a traditional public forum? I’m not forgetting that, but my sense is that *Locke*treated a financial subsidy for the benefit of listeners as quite different from the *Widmar *et al. scenario of access to government property for speakers and listeners. It certainly didn’t say anything to suggest that it was cutting back on *Widmar*. Or am I missing something there? (*Widmar *et al. after all also involved “old-time separationist view[s],” whether “respectable” or not; but the Court rejected that view there, and even many “old-time separationist[s]” signed on to the rejection.) Eugene *From:* religionlaw-boun...@lists.ucla.edu [mailto: religionlaw-boun...@lists.ucla.edu] *On Behalf Of *Bezanson, Randall P *Sent:* Monday, August 15, 2011 3:51 AM *To:* Law Religion issues for Law Academics *Cc:* religionlaw@lists.ucla.edu *Subject:* Re: Widmar v. Vincent redux, though in a traditional public forum? Well ... Don't forget Rehnquist's play in the joints from Locke v. Davey, also a Washington case, by the way. Te state's position seems like a perfectly respectable old-time separationist view. Randy Bezanson U Iowa Sent from my iPad On Aug 14, 2011, at 11:24 PM, Volokh, Eugene vol...@law.ucla.edu wrote: Any thoughts on
Re: Establishment Clause, equal access, and confusion
The 2d Cir does not disagree with the equal access point, but rather says that the School Dist is prohibiting an activity, not expression per se. In fact, prayer, religious instruction, expression of devotion to God, and the singing of hymns are not prohibited. What is excluded is full-scale worship services with all that entails. Worship services are not student groups, but rather collections of adults and children. If a student group engaging in proselytizing activities a la Rosenberger were the equivalent of a worship service, Eugene might be correct. The 2d Cir. is saying that there is no such equivalence here. On the confusion point, I would think that you are more likely to have confusion about government endorsement when a school is transformed into a church for a full day each week than when you have a short prayer announced at graduation. Yet, the latter is unconstitutional under Lee v. Weisman. The disclaimer proposal is insufficient to forestall children and everyone else, actually, from thinking that P.S. 151 is in fact Evangelical, or Buddhist, or whatever, when it is the worship home for a congregation. I don't know if you have noticed, but it is a fact that politicians routinely favor their own religion, so it is perfectly reasonable to conclude that a school board opening the door to a particular religious group for their most important religious activity, worship, is an endorsement of that religious group. And the school board's rejection of a particular religious group's application, even if based on neutral principles, also would raise serious questions about endorsement. Thus, the prohibition is necessary to avoid an Establishment Clause violation. Marci In a message dated 8/15/2011 12:40:58 P.M. Eastern Daylight Time, vol...@law.ucla.edu writes: But this possibility that a few people might be confused, even when the government makes clear that all it’s offering is equal access – just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on – doesn’t strike me as reason enough to reject equal access. ___ 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.
RE: Widmar v. Vincent redux, though in a traditional public forum?
The post quoted below was about the baptism-in-the-park scenario – in which the parks are treated by traditional public forum doctrine as being opened to encourage a diversity of views – not about the school scenario. Where the school scenario fits is hard to tell, given the puzzling nature of the distinction that Locke draws. Eugene From: Marty Lederman [mailto:lederman.ma...@gmail.com] Sent: Monday, August 15, 2011 12:54 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? What if, as is likely the case, New York's purpose in opening its schools for private uses on Sundays is not to encourage a diversity of views from private speakers, but instead simply to generate income, whether the uses are for speech or otherwise? On Mon, Aug 15, 2011 at 12:43 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: Well, the state constitutional defense for the exclusion was raised in Widmar as well and rejected; and the worship-nonworship line was rejected, too. So I don’t think the play-in-the-joints argument is consistent with Widmar. Davey’s response to Rosenberger was simply that, “The purpose of the Promise Scholarship Program is to assist students from low- and middle-income families with the cost of postsecondary education, not to ‘encourage a diversity of views from private speakers.’ Our cases dealing with speech forums are simply inapplicable.” I’m skeptical about this analysis; but even accepting it, as we must, this case is on the Rosenberger/Widmar side, not the Davey side, because according to traditional public forum analysis one purpose of parks is precisely to “encourage a diversity of views from private speakers.” Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P Sent: Monday, August 15, 2011 8:32 AM To: Law Religion issues for Law Academics Subject: RE: Widmar v. Vincent redux, though in a traditional public forum? You are quite right about Locke, Eugene, but I'm not sure that that settles the matter. Washington justified its exclusion of those studying for the ministry on grounds of its own constitutional guarantee of separation of church and state, and the Court accepted that this fell within the State's power via the religion clauses' room in the joints. Logically, that seems analogous. I remember in the old days when I was serving as counsel and then VP at the U of Iowa, that our position was that rooms for religious groups to gather were fine, but holding church services wasn't because it crossed the EC line. I also realize that that was over 30 years ago and much water has gone over the dam, maybe enough to make my old view nothing but a quaint relic. I didn't look specifically at Widmar when I offered the room in the joints thought, so perhaps I'm just tilting at windmills. Yet the logic via Locke seems apt. Randy From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] on behalf of Volokh, Eugene [vol...@law.ucla.edumailto:vol...@law.ucla.edu] Sent: Monday, August 15, 2011 9:45 AM To: Law Religion issues for Law Academics Subject: RE: Widmar v. Vincent redux, though in a traditional public forum? I’m not forgetting that, but my sense is that Locke treated a financial subsidy for the benefit of listeners as quite different from the Widmar et al. scenario of access to government property for speakers and listeners. It certainly didn’t say anything to suggest that it was cutting back on Widmar. Or am I missing something there? (Widmar et al. after all also involved “old-time separationist view[s],” whether “respectable” or not; but the Court rejected that view there, and even many “old-time separationist[s]” signed on to the rejection.) Eugene From: religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edumailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Bezanson, Randall P Sent: Monday, August 15, 2011 3:51 AM To: Law Religion issues for Law Academics Cc: religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? Well ... Don't forget Rehnquist's play in the joints from Locke v. Davey, also a Washington case, by the way. Te state's position seems like a perfectly respectable old-time separationist view. Randy Bezanson U Iowa Sent from my iPad On Aug 14, 2011, at 11:24 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote:
RE: Establishment Clause, equal access, and confusion
Lee v. Weisman was not about confusion. It was about actual government sponsorship. 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 hamilto...@aol.com Sent: Monday, August 15, 2011 1:18 PM To: religionlaw@lists.ucla.edu Subject: Re: Establishment Clause, equal access, and confusion The 2d Cir does not disagree with the equal access point, but rather says that the School Dist is prohibiting an activity, not expression per se. In fact, prayer, religious instruction, expression of devotion to God, and the singing of hymns are not prohibited. What is excluded is full-scale worship services with all that entails. Worship services are not student groups, but rather collections of adults and children. If a student group engaging in proselytizing activities a la Rosenberger were the equivalent of a worship service, Eugene might be correct. The 2d Cir. is saying that there is no such equivalence here. On the confusion point, I would think that you are more likely to have confusion about government endorsement when a school is transformed into a church for a full day each week than when you have a short prayer announced at graduation. Yet, the latter is unconstitutional under Lee v. Weisman. The disclaimer proposal is insufficient to forestall children and everyone else, actually, from thinking that P.S. 151 is in fact Evangelical, or Buddhist, or whatever, when it is the worship home for a congregation. I don't know if you have noticed, but it is a fact that politicians routinely favor their own religion, so it is perfectly reasonable to conclude that a school board opening the door to a particular religious group for their most important religious activity, worship, is an endorsement of that religious group. And the school board's rejection of a particular religious group's application, even if based on neutral principles, also would raise serious questions about endorsement. Thus, the prohibition is necessary to avoid an Establishment Clause violation. Marci In a message dated 8/15/2011 12:40:58 P.M. Eastern Daylight Time, vol...@law.ucla.edu writes: But this possibility that a few people might be confused, even when the government makes clear that all it’s offering is equal access – just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on – doesn’t strike me as reason enough to reject equal access. ___ 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.
RE: Widmar v. Vincent redux, though in a traditional public forum?
While school facilities may be used on Sunday most often by Christian religions for worship services, they can and are used by other faiths on Sunday for religious purposes other than worship. My synagogue, for example, used the local high school on Sunday for religious school classes for many years. From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, August 15, 2011 10:13 AM To: Law Religion issues for Law Academics Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? thanks, Marc. Sorry about that -- the opinion states that the fact that school facilities are principally available for public use on Sundays results in an unintended bias in favor of Christian religions. On Mon, Aug 15, 2011 at 1:00 PM, Marc Stern ste...@ajc.orgmailto:ste...@ajc.org wrote: The rule in bronx household is that schools can be rented whenever not in use. They are less frequently in use on sundays, but lots of schools can be rented on Saturday or Friday nights. Marc ___ 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.
Re: Establishment Clause, equal access, and confusion
I could have sworn Lee was about endorsement (characterized by J. Kennedy as coercion) and whether the listener felt disenfranchised by the govt's apparent endorsement of religion (whether the government intended to endorse it or not). Marci In a message dated 8/15/2011 1:35:48 P.M. Eastern Daylight Time, dlayc...@virginia.edu writes: Lee v. Weisman was not about confusion. It was about actual government sponsorship. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
RE: Establishment Clause, equal access, and confusion
I’m with Doug on this: It’s hard for the school to honestly disclaim endorsement and preferential treatment when it deliberately invites a member of the clergy, precisely because he is a member of the clergy. It’s much easier to make clear to people that there is no endorsement or preferential treatment when the school says, honestly, that this is a public access program that all groups can equally access, and that the church isn’t being given any special access because it’s a church or because the school endorses its message. Indeed, I take it that if a school opens up its facilities for nonworship programs, it would still want to make clear to people that it isn’t endorsing that group, whether the group is the Sierra Club or the Young Americans for Freedom or whoever else – or for that matter a religious group that isn’t engaged in worship services. Presumably the school thinks, and I think correctly so, that it will be easy enough to make this clear. It shouldn’t be any harder for worship services. Finally, if the concern is that students might view endorsement from the fact that the school is open that way every Sunday, nothing stops the school from limiting the number of times one group can use the school each year. And if the school thinks that this isn’t necessary, because it can let (say) the NRA use the school each Sunday without people thinking that the school endorses the NRA – presumably because that’s either already clear or could be made clear – then I think the school can equally let the church use the school each Sunday (with the proper disclaimers) without fear of undue confusion on the public’s part. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, August 15, 2011 10:18 AM To: religionlaw@lists.ucla.edu Subject: Re: Establishment Clause, equal access, and confusion The 2d Cir does not disagree with the equal access point, but rather says that the School Dist is prohibiting an activity, not expression per se. In fact, prayer, religious instruction, expression of devotion to God, and the singing of hymns are not prohibited. What is excluded is full-scale worship services with all that entails. Worship services are not student groups, but rather collections of adults and children. If a student group engaging in proselytizing activities a la Rosenberger were the equivalent of a worship service, Eugene might be correct. The 2d Cir. is saying that there is no such equivalence here. On the confusion point, I would think that you are more likely to have confusion about government endorsement when a school is transformed into a church for a full day each week than when you have a short prayer announced at graduation. Yet, the latter is unconstitutional under Lee v. Weisman. The disclaimer proposal is insufficient to forestall children and everyone else, actually, from thinking that P.S. 151 is in fact Evangelical, or Buddhist, or whatever, when it is the worship home for a congregation. I don't know if you have noticed, but it is a fact that politicians routinely favor their own religion, so it is perfectly reasonable to conclude that a school board opening the door to a particular religious group for their most important religious activity, worship, is an endorsement of that religious group. And the school board's rejection of a particular religious group's application, even if based on neutral principles, also would raise serious questions about endorsement. Thus, the prohibition is necessary to avoid an Establishment Clause violation. Marci In a message dated 8/15/2011 12:40:58 P.M. Eastern Daylight Time, vol...@law.ucla.edu writes: But this possibility that a few people might be confused, even when the government makes clear that all it’s offering is equal access – just like the equal access offered to religious groups in many contexts, such as tax exemptions, the use of GI Bill grants, and so on – doesn’t strike me as reason enough to reject equal access. ___ 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.
Re: Establishment Clause, equal access, and confusion
The two decisions in which possible erroneous endorsements play a role are Pinette and Good News(and maybe the ten commandment cases).In Lee,the problem was not about a mistake about the existence of endorsement, but what the meaning of the school's action in including a prayer at graduation. From: hamilto...@aol.com [mailto:hamilto...@aol.com] Sent: Monday, August 15, 2011 01:38 PM To: religionlaw@lists.ucla.edu religionlaw@lists.ucla.edu Subject: Re: Establishment Clause, equal access, and confusion I could have sworn Lee was about endorsement (characterized by J. Kennedy as coercion) and whether the listener felt disenfranchised by the govt's apparent endorsement of religion (whether the government intended to endorse it or not). Marci In a message dated 8/15/2011 1:35:48 P.M. Eastern Daylight Time, dlayc...@virginia.edu writes: Lee v. Weisman was not about confusion. It was about actual government sponsorship. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 ___ 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.
RE: Establishment Clause, equal access, and confusion
I doubt that a typical six-year-old is going to much notice this (I say this as a father of a six-year-old and a seven-year-old) -- especially once he's told that everyone is allowed to access the school equally, and that what he sees at the school those days comes from the group, not from the school. But if you think it necessary, you can add, You might notice that some groups have decided to use the school more than others. But that's their decision. We at the school just decided to open it to anyone who wants to come. But if you think this isn't enough, and that some six-year-olds will be confused, wouldn't the six-year-old might be confused standard go rather too far? I suppose a six-year-old who sees the principal going to church Sunday might think that the school is religious, and (to return to the religious garb case) a six-year-old seeing a teacher wearing a yarmulke might think that this was the school's choice and not the teacher's (even though other teachers don't wear yarmulkes). It seems to me, though, that constitutionality should be determined by something other than the possibility that some six-year-olds, despite a disclaimer, won't fully grasp the distinction between private choice and public choice. Eugene From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, August 15, 2011 9:53 AM To: Law Religion issues for Law Academics Subject: Re: Establishment Clause, equal access, and confusion And how would the school explain to six-year-old students why the school is open to such uses only on Sundays; and why, just coincidently, the overwhelmingly predominant uses of the school are for Christian religious services? Don't get me wrong -- this doesn't mean that I necessary think there would be an EC violation. But I am inclined to think that, at a minimum, the school must (but cf. Braunfeld) expand its access policy beyond Sundays; provide very robust disclaimers (per the controlling opinions in Pinette) -- disclaimers explicable to young students (more of a challenge than Eugene suggests); and perhaps even make special efforts to ensure that an array of groups, religious and nonreligious, are encouraged to make use of the school. On Mon, Aug 15, 2011 at 12:40 PM, Volokh, Eugene vol...@law.ucla.edumailto:vol...@law.ucla.edu wrote: I've never seen the force of concerns about confusion about government endorsement created by equal access proposals, especially when there's time to explain things to the confused people. Schools' job is to dispel confusion among students about various things. They have lots of opportunity to do it. How hard is it to put up signs - and, if necessary, even make an announcement in class or in some handouts - that say something like: Our school system opens up space after hours to any community group that wants to use it. This is our way of helping people speak on whatever subjects they want to speak about. All groups are equally entitled to use this space, even if they say things that other people might disagree with - that's what promoting free speech is all about. So please keep in mind that the things you see said and displayed here after hours don't come from the school system or the government - they come from the private groups that are using this space. Not a complicated message, and in fact a message that's worth teaching to the students generally. (Of course, this is just what I cobbled together in a couple of minutes; naturally, this can be edited to be clearer.) And if the constitutional norm is equal treatment, which I think it should be, then the answer to the argument that the government may reject the norm because of the risk of confusion is that there's a less restrictive means of avoiding the confusion: educating the public about the equal-access nature of the program. This problem, incidentally, likewise comes up with the statutes barring teachers from teaching in religious garb (which might be broad enough to cover yarmulkes and headscarves, though most clearly applies to nun's habits and the like). The statutes were upheld by two lower courts a few decades ago, but a more recent lower court decision struck one down, I think, and rightly so. Any concerns about confusion on the students' part can be easily dispelled, I think, by simply teaching students - and it shouldn't take long - that in our society different people have different beliefs, that some people believe that they need to wear particular religious clothing, and that these beliefs are the teachers' own, not the schools'. Again, not a complicated message, and one that's worth teaching in any event. To be sure, some people might remain confused even after this, and might insist on believing that the government is endorsing religion even when
Re: Establishment Clause, equal access, and confusion
As I said, I'm not foreclosing the possibility that a sufficient disclaimer could prevent an EC problem. And I'd like to think something such as Eugene proposes would do the trick. But I remain somewhat skeptical, for two reasons: 1. First, I'm happy to have been wrong in assuming a formal Sunday only policy. Nevertheless, it remains the case that the schools are overwhelmingly available only on Sundays -- and the reason for that is not coincidental, or unrelated to majoritarian religious practices. Thus it's a bit cavalier to simply say to students: You might notice that some groups have decided to use the school more than others. But that’s their decision. We at the school just decided to open it to anyone who wants to come.” Yes, but for reasons not unrelated to religious practices, we at the school also established a structure under which churches would overwhelmingly (not exclusively, Alan) be the primary renters, and for purposes of religious services, at that. It's not simply a matter of private choice or their decision: Had the school chosen to hold its extracurricular events on Sundays rather than Saturdays, the distribution of renters would look very different. 2. Second, the dirty little secret of almost all these equal access cases, including this one -- and the fact that makes Eugene's proposed disclaimer problematic -- is that it is *not *the case that we at the school just decided to open it to anyone who wants to come.” There are, for one thing, formal, categorical exclusions: Commercial activities are not allowed. Nor are events which are personal in nature (e.g., weddings, showers, engagement parties, which the Board of Education policy deems strictly forbidden. Most importantly, Board policy expressly provides that [s]chool Buildings may *not* be used for conducting *political events*, activities or meetings, and that the use of any school during extended hours by any person, group, organization, committee, etc., on behalf of, or for the benefit of any elected official, candidate, candidates, slate of candidates, or political organization/committee is *prohibited* except [for candidate fora] (emphasis in original). On top of that, state law and BoE policy authorizes permits to be granted only for holding social, civic, and recreational meetings and entertainment, and other uses *pertaining to the welfare of the community*. Can we truly say, with any degree of confidence, that most school districts applying this welfare of the community standard would permit a weekly rental by, say, NORML, or a transexual support group, or a white supremacist group, or a jihadist organization, the Nation of Islam, or, for that matter, Wiccans or Scientologists? (And no, of course I am not suggesting any parallels among these groups, or between these groups and more mainstream political and religious organizations, on any metric except that they all are deeply controversial, engender strong opinions and hostile reactions, and tend to be the sorts of groups as to which at least some nontrivial number of parents wish to limit their childrens' exposure, rightly or wrongly.) I'm dubious that many, if any, school districts have a genuine open access policy, in fact -- or that they would continue to permit rentals if they knew they had to allow such groups. And we *know* that Students for Bachmann or Obama 2012 would be absolutely prohibited. Accordingly, whatever else the school might be able to say to explain why their buildings are transformed into churches every Sunday, the one thing it cannot truthfully say is that We at the school just decided to open it *to anyone who wants to come*.” This doesn't mean that the disclaimer option is futile, or that there would necessarily be an EC violation. But I think the dilemma is more vexing than Eugene's solution suggests -- that is, if we truly wish to convey to young students that the school does not endorse the weekly religious service, at least in the sense of thinking it a more appropriate use of rental space than other controversial activities, including the political activities that a majority of the Court in Citizens United recently described as being speech that is central to the meaning and purpose of the First Amendment. On Mon, Aug 15, 2011 at 1:59 PM, Volokh, Eugene vol...@law.ucla.edu wrote: I doubt that a typical six-year-old is going to much notice this (I say this as a father of a six-year-old and a seven-year-old) -- especially once he’s told that everyone is allowed to access the school equally, and that what he sees at the school those days comes from the group, not from the school. But if you think it necessary, you can add, “You might notice that some groups have decided to use the school more than others. But that’s their decision. We at the school just decided to open it to anyone who wants to come.” ** ** But if you think this isn’t enough, and that
