This just a quick response. Eugene's questions deserve a more thoughtful
response, but I have deadlines to meet.
I think these are very tough questions. And I certainly don't claim to have
the complete answer. I'm not even entirely sure that the ordinance in my
hypothetical is unconstitutional. Intuitively, I think that it is, but it
is hard to explain why. If a neighboring town, which did not have the
history of acting for racist reasons that the first town did, enacted a
similar ordinance solely to protest the way the Supreme Court's equal
protection jurisprudence was applied to other towns in the area, why
exactly would that be unconstitutional?
But, having said that, I'm not sure that Eugene's distinction between
speech and conduct is persuasive.
Eugene says, "It would be one thing to tell cities that they
can't protest the Court's jurisprudence by enacting laws that restrain
people's liberty to buy or sell homes. But to tell cities that they
can't protest the Court's jurisprudence by posting legal documents that
help form a city's anti-Court argument seems to me more troublesome."
But why is that the case. True, the ordinance in my hypo has an effect (on
the ability of people to buy homes), but that effect is not
unconstitutional unless the government acts for improper reasons.
Similarly, the display of the Ten Commandments or other religious displays
has an effect.
Under the Court's analysis, that effect may not be enough, standing alone,
to justify striking the display down as unconstitutional.
But that does not mean that the effect is irrelevant to our constitutional
analysis.
Eugene might respond that the effect of conduct is different than the
effect of speech.
Maybe that is true for private speech under the free speech clause. But it
is much less clear to me that it is true for government speech under the
Establishment Clause.
Some of the core of what the Establishment clause prohibits -- such as the
government declaring a particular religion to be the one true faith -- is
government speech.
Alan Brownstein
UC Davis
At 10:25 AM 7/8/2005 -0700, you wrote:
I appreciate Alan's question; but I wonder whether the matter is
somewhat different when all that's at stake is government speech. We
generally give more latitude to dissenters who protest through speaking
than through actions that have more tangible effect on others (even when
the action is symbolic).
I realize that there's a good deal of controversy about whether
government entities even have free speech rights, but it seems to me
that the case for state and local entities having free speech rights
vis-a-vis the federal government is quite strong, from a
value-to-listener perspective even if not a self-expression perspective
-- the classic example here, I would suspect, would be the Virginia and
Kentucky Resolutions. And I also realize that even if governments have
free speech rights, their rights might be in some measure limited by
constitutional provisions that constrain those governments (where
private speakers aren't limited, since the constitutional provisions
don't constrain them). Still, it seems to me that courts ought to labor
to avoid interpreting constitutional provisions (at least in close
cases) in a way that restricts local government entities' speech.
Incidentally, someone suggested that if local government leaders
disapprove of the Court's Establishment Clause jurisprudence, the
solution is to amend the Constitution, not to violate the law.
Alternatively, I suppose that one can argue that another solution would
be to get Justices with other views appointed -- or even to persuade
some Justices to change their minds -- rather than to violate the law.
But both the amendment and the appointment of Justices are
engineered by speech -- by people and organizations criticizing the
existing legal rules. The First Amendment is intended to protect such
criticism, in large part because the criticism may be an important part
of the lawmaking process (whether making of normal law or constitutional
law).
Are state and local government bodies precluded from
participating in this amendment process in the way I describe? If they
post Justice Scalia's dissent and the supporting documents as part of an
argument to amend the Constitution, or replace the Justices with those
who would uphold the Ten Commandments, may this argument for changing
federal law be enjoined by federal judges?
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of A.E.
> Brownstein
> Sent: Friday, July 08, 2005 10:11 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Government displays
> protestingagainsttheSupremeCourt'sEstablishment Cla...
>
>
> Motive and purpose issues are always problematic. I have
> often thought that
> the only reason to incorporate this kind of an analysis into
> constitutional
> doctrine is that there are some situations in which doctrine
> would be even
> worse if courts could not take motive or purpose into account.
>
> Consider another hypothetical. Plaintiffs prove that a city adopted a
> facially neutral land use regulation for the primary purpose
> of making it
> more difficult for racial minorities to buy homes in the
> community. The law
> is struck down under accepted equal protection doctrine. The
> city re-enacts
> the ordinance -- this time solely for the purpose of
> demonstrating its
> outrage at the Supreme Court's equal protection jurisprudence. Is the
> second ordinance unconstitutional?
>
> Alan Brownstein
> UC Davis
>
>
>
> At 09:18 AM 7/8/2005 -0700, you wrote:
> >Content-class: urn:content-classes:message
> >Content-Type: multipart/alternative;
> > boundary="----_=_NextPart_001_01C583D8.A9D0BDA3"
> >
> > But what if the city is most outraged about the Court's
> > Establishment
> > Clause decisions, and wants to complain about them? Again,
> say that the
> > City Council has read and strongly agreed with Justice
> Scalia's dissent
> > in McCreary, and they want to put up that dissent, together
> with all the
> > documents quoted in the dissent, to illustrate their view
> that the Court
> > is dead wrong here -- which of course may well be tied to
> their view that
> > God exists and that it's important that he be endorsed.
> >
> > Would city councils be permitted to express their
> dissenting views
> > this way?
> >
> > Eugene
> >
> >-----Original Message-----
> >From: [EMAIL PROTECTED]
> >[mailto:[EMAIL PROTECTED] On Behalf Of
> Douglas Laycock
> >Sent: Friday, July 08, 2005 6:45 AM
> >To: [email protected]
> >Subject: RE: Government displays
> >protestingagainsttheSupremeCourt'sEstablishment Cla...
> >
> >I don't agree with much of Jim's argument, but a city could put up a
> >display that makes that argument. Jim's argument is about
> the Court, and
> >religion is only one element. In Eugene's hypothetical, the
> city was
> >unhappy only about the religious display cases, and it made
> that point by
> >putting up a predominantly religious display.
> >
> >
> >Douglas Laycock
> >University of Texas Law School
> >727 E. Dean Keeton St.
> >Austin, TX 78705
> >512-232-1341
> >512-471-6988 (fax)
> >
> >
> >----------
> >From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED]
> >Sent: Fri 7/8/2005 5:58 AM
> >To: [email protected]
> >Subject: Re: Government displays protesting
> >againsttheSupremeCourt'sEstablishment Cla...
> >
> >In a message dated 7/7/2005 6:58:35 P.M. Eastern Standard Time,
> >[EMAIL PROTECTED] writes:
> >It is implausible because no political actor wants to do this
> >independently of either wanting to promote the faith or
> believing that a
> >substantial block of his constituents want him to promote the
> >faith. There is simply no motivation sufficient to overcome inertia
> >independent of the religious motivation. It is naive to believe
> >otherwise. A desire to protest the decisions is also
> largely derivative
> >of a desire to promote the faith. And even if we take
> protest seriously
> >as a secular motivation, McCreary County appears to require that the
> >secular motivation be primary. And if we get over that hurdle, the
> >display still likely has a principally religious effect.
> >
> >I realize that I am just me, and Doug is, well, Doug. I
> wonder why his
> >remarks are self-proving? Antipathy toward a court that has
> run amok is a
> >constant underlying stream of American political faith,
> having nothing in
> >particular to do with religion.
> >
> >Here is a court that invites a nation to forget its history, its
> >founding. Here is a court that sustained the durability of
> the practice
> >of human slavery. Here is a court that sustained the practice of
> >segregation for nearly four score years. Here is a court
> that arrogated
> >to itself the power to invalidate acts of Congress on the
> purported ground
> >of facial unconstitutionality despite having been denied
> thrice in the
> >Constitutional Convention the very role in a committee of
> review. Here is
> >the court that fails to care sufficiently about the facts in any
> >particular case that it uses a fraudulently ginned up case
> to strike down
> >the abortion statutes of virtually every state. Here is a
> court that
> >tells communities that it can take a woman's home, grind it
> into dust, and
> >transfer her property to another private individual for
> commercial uses.
> >
> >Trust Doug's assurance if you want, that no motivation but a
> religious
> >one
> >is sufficient to overcome inertia. And continue to be
> blissfully unaware
> >of how the court is inviting the spite of a nation. To be
> sure, not every
> >person cares about every issue. Not everyone takes the same
> side. But the
> >court is fairly subject to antipathy across a broad swath of
> the "main"
> >stream. And from my perspective, the antipathy is real, deep, and
> >abiding, in quantities sufficient to sustain such defiant behavior.
> >
> >Jim Henderson
> >Senior Counsel
> >ACLJ
> >
> >_______________________________________________
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> >
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>
> _______________________________________________
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>
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_______________________________________________
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_______________________________________________
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