Alan: I'm not sure what the rule would be as to government
selection of speakers in a lecture series. But let me ask you this,
which doesn't involve the government's own speech: We know that the
government may deny the charitable tax exemption to organizations that
engage in lobbying. See Taxation With Representation v. Regan. May the
government deny the charitable tax exemption to organizations that
engage in religious speech?
I assume the answer is no, because that would be discrimination
against a religious practice, and unconstitutional under the Free
Exercise Clause, see Lukumi and McDaniel. Yet content-based (though
viewpoint-neutral) discrimination against political partisan activity is
constitutional under the Free Speech Clause, see Taxation With
Representation. If I'm correct, then this means that religious speech
is at least sometimes protected against governmental discrimination
based on religiosity even where political speech is not protected
against government discrimination based on its content.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Alan
> Brownstein
> Sent: Tuesday, November 08, 2005 4:55 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Free Exercise Clause and government employees
>
>
> I'm not sure that it does, if we are talking about speech.
>
> For example, in Forbes the Court lists several government
> decisions involving editorial discretion, e.g. picking
> speakers for a lecture series etc. There are also many
> decisions that are not listed that would involve similar
> discretionary functions, e.g. acquiring books for a public
> library. The court suggests that even viewpoint
> discriminatory decisions in these contexts should not be
> subject to rigorous review under the free speech clause.
>
> If the official choosing speakers for the lecture series, for
> example, rejects several possible speakers because their
> viewpoints are deemed unacceptable, speakers expressing
> secular messages could not challenge this decision under the
> free speech clause. Do you think a speaker expressing a
> religious message would have a free exercise claim here, Eugene?
>
> Alan Brownstein
>
>
>
> Finally, Alan's Free Exercise Clause / Free Speech
> Clause is an interesting one, but I wonder how far it would
> go. After all, if the Free Exercise Clause has an
> antidiscrimination component, wouldn't it necessarily end up
> protecting religious speech (as well as religious
> conduct) against discrimination based on religiosity, even in
> situations where the Free Speech Clause doesn't protect
> secular speech against discrimination based on its content?
>
> Eugene
>
> >
>
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