The difference between the
public square and government sponsorship is the point at which both sides
in the culture wars start cheating with their claims about the current law.
The Court has never held that private religious speech may or must be censored
because it occurs on government property. Speech is private if the speaker
is not a state actor and receives no preferential access or promotion from
anyone who is a state actor.
So private religious speech is
constitutionally protected in the public square. Government
sponsorship of that speech is restricted -- restricted pretty tightly but far
from absolutely. For better or worse, Zorach v. Clausen, Marsh v.
Chambers, Lynch v. Donnelly, the menorah/Christmas tree holding in Allegheny
County v. ACLU, Van Orden v. Perry, and probably (if they had reached the
merits) Elk Grove Unified School District v. Newdow, are all cases where the
Court has allowed government to sponsor or prefer religious speech. There
is no such list of exceptions to the rule that government cannot restrict
private religious speech because of its religious content.
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: Sun 7/24/2005 12:48 PM To: religionlaw@lists.ucla.edu Subject: Re: Assaults on the England language In a message dated 7/23/2005 10:17:08 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
The problem, in terms of conflict, it seems to me, arises, not from use of the public square, but from the desire on the part of some to use government space and property for the promotion of religion and for direct attacks upon the constitutional principle of "separation between Religion and Government," (James Madison, "Detached Memoranda," William and Mary Quarterly, 3:555). But this is the essence of the free speech and peaceable assembly
principles that are the underpinning of the public forum doctrine: use of
available public spaces (virtually always "government owned") for promotion of
ideas of the speaker free from exclusion based on the disapproval of those ideas
by others, whether government actors or private parties.
Jim Henderson
Senior Counsel
ACLJ
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