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
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.
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: 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 http://lists.ucla.edu/cgi-bin
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
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 14
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
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
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: 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.
Widmar v. Vincent redux, though in a traditional public forum?
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.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.
