Now, this is
interesting -- interject the Wiccans into the picture, and all of a
sudden Eugene starts sounding a lot more like me (as opposed to, say,
Justice O'Connor) when it comes to the questions of "neutrality" and
"endorsement." This appears to be quite a change from his perspective in
the "equal access" and "license plate message" cases.
I agree, Eugene, that if and when the Council
permits the Wiccan to give the invocation, that might convey the very
modest message of endorsement that you suggest -- namely, not that Wiccans'
views are "right," but that their views are "within the realm of what the
legislature thinks is tolerable." Such "mild" endorsement -- X is within
the realm of the "tolerable"/acceptable/beneficial; Y is not -- is present
whenever the state makes choices involving some discretion,
or some line-drawing.
However:
1. Is it really permissible, even on a very
vigorous understanding of the "government speech" doctrine, for
the state to choose to articulate the message that certain
religious views are "tolerable" but that certain other views are
not within the realm of the tolerable? Particularly where, as
here, the view the state does not wish to characterize as "tolerable" does not
concern a social issue about which the state may adopt its own view (e.g.,
racial segregation; the Iraq war), but instead involves a specifically
religious question. That is to say -- putting it in the specific
terms of the Simpson case -- can the state convey the
view that polytheism is "not within the realm of the
tolerable"?
2. In McDaniel v. Paty, could
Tennessee have won the case simply by saying that it did not wish to lend any
legitimacy -- "quasi-endorsement" -- to religious views, or to particular
religious beliefs? In Torcaso, could Maryland have sustained its
test for public office simply by arguing that it did not wish to
convey that atheism is "within the realm of the tolerable"? In
Pinette, could Ohio simply have said -- quite reasonably --
that it did not wish to convey to its citizens that it finds the Klan to be
within the realm of the "tolerable"? (Truth be told, that really
was what was going on in Pinette. "Imagine the outrage,
for instance, if Louis Farrakhan were invited to deliver a legislative
prayer"? Well, imagine the outrage if the KKK were "invited" (by which
Eugene presumably means "permitted") to place a cross in front of the state
capitol.)
Indeed, if the exclusion of minority religions were
done at the federal level, how could this "within the range of the tolerable"
endorsement notion comport with Article VI?
3. Really, how much of a message of
"quasi-endorsement" would the Council send if it added Ms. Simpson to the list
of 235+ clergy -- from all over the religious spectrum -- who are
eligible to make invocations? Isn't this inconsistent with Justice
O'Connor's view in Mergens that "[t]he proposition that schools do not
endorse everything they fail to censor is not complicated," and
that "secondary school students are mature enough and are likely to
understand that a school does not endorse or support student speech that it
merely permits on a nondiscriminatory basis"? At most, wouldn't a
reasonable observer understand the "message" to be, not that the
Council "tolerates" polytheism, but that the Constitution
does? (This would be especially clear, of course, if the inclusion of
Ms. Simpson were effected pursuant to a court order in a high-profile
case. But I think it would be true, as well, even if the Council had
voluntarily added her to the list, so that, like the Jewish and Mormon and
Muslim clergy, she gives invocations once every 235 meetings or
so.)
4. Most interestingly, Eugene, if you think
there is at least a mild form of state "endorsement" of religious beliefs in
this context, what does that mean for the so-called "equal access"
contexts, such as Rosenberger, Pinette and the
license-plate cases, where the state is forbidden from endorsing
religion at all? You're sounding here a bit like Justice Souter
("There is a communicative element inherent in
the very act of funding itself."). Indeed, if there's endorsement
here, then it would appear to me that a fortirori there
must have been impermissible endorsement in Rosenberger,
where the funding decision was much more selective, much more
subjective, and much more "evaluative." The funding of Wide Awake -- along
with only 14 (not 235) other magazines and newspapers, by a student
committee, following contentious debates about which school groups are most
worthy to receive portions of scarce school resources -- not only
sends the message that Wide Awake's views are "tolerable" (a message that,
frankly, I don't view as especially troubling from an EC
perspective), but that such views provide "University-wide benefits" (the
principal criterion for funding in the UVa program), and, indeed, that such
religious views provide greater benefits to UVa than
the activities that are denied funding (a governmental
message that I do find problematic under the EC).
If, as Justice O'Connor believed, the funding of
Wide Awake would occur "in a context that makes
improbable any perception of government endorsement of the religious message,"
isn't that even more obviously true in Ms. Simpson's case?
----- Original Message -----
From: "Volokh, Eugene" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<religionlaw@lists.ucla.edu>
Sent: Friday, May 27, 2005 3:24 AM
Subject: RE: More Discrimination Against
Wiccans
measure, an endorsement of the minister's denomination. It's not
exactly an endorsement in the sense of a statement that his
denomination's views are right -- but it is a statement that those views
(including those that don't appear in the prayer) are at least within
the realm of what the legislature thinks is tolerable. Imagine the
outrage, for instance, if Louis Farrakhan were invited to deliver a
legislative prayer.
The County Council in the Fourth Circuit case didn't want to
deliver that message of quasi-endorsement as to Wicca. From what little
I know of Wicca, that strikes me as a pretty narrow-minded view on the
County Council's part. But it was trying to control the message that
the legislative prayer sent -- not just the literal words of the prayer,
but how the delivery of those words by this particular minister would be
perceived. Despite Marsh v. Chambers' reliance on the nondenominational
nature of the legislative prayer, I think that most legislative prayer
regimes would inherently require this sort of control, whether exercised
formally or informally, in order to accomplish the legislative prayer's
purpose, which is to solemnize events in a way that the majority finds
effective.
Of course, all this may be an argument against Marsh v.
Chambers, because it illustrates that these legislative prayer schemes
will necessarily involve endorsement not just of "religion" in the
abstract, but of particular religions at the expense of other religions.
But it's not, I think, an open-and-shut argument; and I think it does
little violence to original meaning, our nation's traditions, or even
the body of Supreme Court precedent (on the last score, not no violence,
but little violence) to leave the government with this latitude to
prefer some religions over others in this particular sort of speech.
The Indiana case strikes me as much more troublesome: It
involves a direct restraint on private liberty, not just offensive or
insulting government speech. It involves a prohibition on conduct that
to many people is one of the most important aspects of their lives --
teaching their worldview to their children -- rather than just the
chiefly symbolic harm caused by a minister's exclusion from a
legislative prayer program. It lacks the historical pedigree that
legislative prayer, coupled with legislative choice about who delivers
the prayer, has. The differences strike me as quite substantial.
The Fourth Circuit decision may well be mistaken; and decisions
like it may lay the groundwork for much more troubling decisions, such
as that in Indiana. But it seems to me that the Indiana decision is far
more clearly unconstitutional (even if we set aside the Free Speech
Clause question) than the Fourth Circuit decision.
Eugene
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman
Sent: Thursday, May 26, 2005 11:14 AM
To: Law & Religion issues for Law Academics
Subject: Re: More Discrimination Against Wiccans
Yes, the cases are different, and perhaps the Indiana case raises even
more constitutional problems than the Virginia case. (Eugene lists five
distinct constitutional clauses implicated here:
http://volokh.com/archives/archive_2005_05_22-2005_05_28.shtml#111712498
6.)
But both cases involve a stark and entirely unjustifiable denominational
discrimination against Wiccans. Moreover, the Fourth Circuit case,
contrary to common understanding, is not about the content of government
prayer or speech. To be sure, it appears that the County Council
required that the prayer be "monotheistic." But, whether or not that is
itself constitutionally problematic because of the "government speech"
doctrine (cf. Johanns; the CTA4's own recent decision in Wynne v. Great
Falls), it's not directly at issue in the case, because Ms. Simpson
herself is a monotheist, and she offered to make a nonsectarian,
non-proselytizing invocation that referred to a divinity in very general
terms. She was excluded not because of the content of her proposed
prayer but because of her affiliation with a disfavored denomination.
Although the Board's list of approved persons includes clergy from at
least 235 congregations (including the Islamic Center of Virginia, which
has sent Imams to give the invocations, Jewish congregations, Jehovah's
Witness congregations, and Morman churches), County policy "allows only
monotheistic congregations to add their religious leaders to the list of
those eligible to give an invocation." Because the County viewed the
Wiccans as failing this monotheism test, Ms. Simpson was excluded. Just
as clearly unconstitutional as the Indiana case, no?
----- Original Message -----
From: Conkle, Daniel O.
To: Law & Religion issues for Law Academics
Sent: Thursday, May 26, 2005 11:46 AM
Subject: RE: More Discrimination Against Wiccans
Aren't these cases rather different? The Indiana case involves a
judicial intrusion into the private religious decisionmaking of parents
(in the absence of any dispute between them). The 4th Cir. and the 10
commandments cases raise the very different issue of governmental speech
relating to religion. I think one can support the permissibility of
generalized governmental statements about religion, and even
"Judeo-Christian" prayers in the Marsh tradition, without accepting the
Indiana decision trumping private religious/parental rights. (Needless
to say, one also can reject the permissibility of generalized
governmental statements about religion or argue more specifically
against the 4th Circuit ruling or against the posting of the 10
commandments, etc., but I do think that those cases raise different
questions.)
Dan Conkle
**************************************
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana 47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**************************************
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of
[EMAIL PROTECTED]
Sent: Thursday, May 26, 2005 10:33 AM
To: religionlaw@lists.ucla.edu
Subject: Re: More Discrimination Against Wiccans
Isn't it fairly obvious what this judge and the domestic relations
person were thinking? They were thinking that this is a "Christian"
country, just as the 4th Cir was when it approved legislative prayers
that include monotheism and exclude Wiccans. The "system" requires
faiths that are consistent with Christianity, and those that are not,
can be excluded, on this reasoning.
This is a direct result of the current, though misguided, cultural
pressure to "reclaim" the country for Christians, is it not? If there
were two states, other than Alabama, where we were going to see this
play out, it would be Virginia and Indiana.
My question is if this case were to go up, which side would the DOJ
take, given its position in the Ten Commandments and Pledge of
Allegiance cases?
Marci
In a message dated 5/26/2005 10:54:45 A.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
Marty Lederman wrote:
According to this article
(http://www.indystar.com/apps/pbcs.dll/article?AID=/20050526/NEWS01/5052
60481), an Indiana judge has prohibited a pair of divorced parents from
exposing their 9-year-old son to Wiccan beliefs and rituals. Both
parents practice Wicca, and both strongly oppose the court's
restriction. The court's order apparently was based on the
recommendation of a domestic relations bureau, which was concerned about
the "discrepancy between Ms. Jones and Mr. Jones' lifestyle and the
belief system adhered to by the parochial school [that the child
attends]. . . . Ms. Jones and Mr. Jones display little insight into the
confusion these divergent belief systems will have upon (the boy) as he
ages," the bureau said in its report.
I just wrote about this on my blog. It's the most obvious and blatant
free exercise violation I can ever recall seeing. What on earth was this
judge thinking?
Ed Brayton
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_______________________________________________ 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
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