Alan's analysis has to be correct. What is happening in this case is
that the equality principle established in Mergens/Good News Club is starting to
swallow up any reasonable disestablishment principles.
My concern about the case is that there was evidence that the religious
organization was intent on proselytizing students during the school day (in park
across the street), where they used the phrase that their church met "in your
school." In light of the current oversimplification of disestablishment
principles when the Free Speech Clause enters the door, the court rejects this
as utterly irrelevant. But is this?
Marci
In a message dated 11/19/2005 10:55:57 A.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
Good
question. I think Justice White had it right in Texas Monthly. Books and
periodicals offered for sale should be construed to be speech for speech or
press clause purposes. But that doesn't mean that all exercises of religon
that involve _expression_ should be construed to be speech for speech clause
purposes rathern than religion for religion clause purposes.
Consider
an analogy. Psychotherapy is entirely expressive. But we typically do not view
the regulation of the practice of psychotherapy as a speech regulation and do
not review such regulations under the speech clause. But we would consider the
regulation of books and periodicals on psychotherapy to be speech and we would
review their regulation under the speech clause. A preference for or against
psychotheraputic books would invoke rigorous speech clause review. Regulations
that discriminate in favor or against the practice of psychotherapy (e.g,
regulate it more rigorously than other medical or theraputic practices) would
not be reviewed the same way.
I think about worship services the same
way. They constitute the exercise of religion, not speech, for constitutional
purposes. Accordingly, they can be accommodated through religion specific
exemptions to the same extent that other religious practices may be
accommodated without violating the speech clause. I recognize that this
approach requires courts to engage in some fine line drawing -- but I
don't think that problem is avoidable. Good News Club just makes the problem a
lot more difficult.
Alan Brownstein
UC
Davis
________________________________
From:
[EMAIL PROTECTED] on behalf of Volokh, Eugene
Sent: Fri
11/18/2005 2:09 PM
To: Law & Religion issues for Law
Academics
Subject: RE: Bronx Household of Faith v New York
Schools
Given Texas Monthly v. Bullock, would
treating worship services more
favorably than civic club meetings even be
constitutional? If the
government can't prefer religious publications
over secular
publications, why can it prefer religious meetings over
secular
meetings?
Eugene
Alan Brownstein
writes:
I continue to believe that reasoning of Good News Club is
problematic,
and that the Court's characterization of a worship service as
a
viewpoint of _expression_ is going to raise problems for
religious
accommodations that treat worship services more favorably than
civic
club meetings (or the site for worship services more favorably than
the
sites for civic club meetings). Viewpoint discrimination is a two
edged
sword.
|
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