I guess I don't understand the difference between "speech on a religious topic" and a "religious service." The "services" I attend most Sundays involve announcements (speech about upcoming events), singing (praise and worship songs), and a sermon (i.e. a lecture). The only difference between a typical Rotary Club meeting and my church service is the viewpoint of the speech--the Rotary members sing secular songs (Yellow Rose of Texas) and their sermons/lectures are on secular subjects.
But consider this. Here is where there might be an issue of speech vs. exercise--suppose a public school adopted a generally applicable rule that prohibited any food or drink at equal access meetings. Could this be used to forbid communion services (as well as snacks at Rotary meetings)? Or suppose the rule was that no group could reserve a room more than twice in one month? Wouldn't this rule prevent a church from locating its services permanently !
at the
school?
These would be speech-neutral and religion-neutral rules that I suppose could be enforced across the board. No?
Rick Duncan
Alan Brownstein <[EMAIL PROTECTED]> wrote:
My answer to Eugene's question would probably depend on what makes the
religious sermon in his hypothetical a "sermon." If the only reason he
characterizes something as a sermon is that it is a speech on a
religious topic, I would view this as a speech clause issue. If it is a
sermon because it is part of a larger religious service, I would
characterize it as the exercise of religion for constitutional purposes.
My question for Eugene is this: If you characterize religious _expression_
as both speech and religion, which constitutional provi! sions control
questions about whether the government can promote the speech or
regulate it. I take it that Eugene would agree that at some point
government religious speech is not characterized as speech (which the
government is constitutionally permitted to express) but rather is
recognized to be religion which the state can not endorse or establish.
If the government proclaims, "Christianity is the only true faith"
that's an establishment of religion, isn't it? That statement is not
evaluated under the speech clause. The fact that it is speech is largely
irrelevant to the constitutional analysis. Similarly, if accommodations
of expressive religious activities such as worship services are
evaluated under the speech clause, if a school allowed children to be
excused from school to go to religious services on a holy day, the
school would be constitutionally obligated to allow other children to
have an excused absence for any expressive act! ivity they attended or
participated in. Similarly, Title VII requires the reasonable
accommodation of employee religious practices. If what is being
accommodated is a ritual with an expressive dimension to it, does that
mean the employer has to similarly accommodate secular expressive
activities?
I recognize that there may be serious disagreements about where the line
should be drawn between speech and the religion clauses, but the line
has to be drawn somewhere -- or else our current understanding of what
the Establishment Clause means and the permissibility of religion
specific accommodations will have to be significantly altered.
Alan Brownstein
UC Davis
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene
Sent: Saturday, November 19, 2005 1:19 PM
To: Law & Religion issues for Law Academics
Subject: RE: Bronx Household o! f Faith v New York Schools
I appreciate Alan's points, though I think that the regulation of
psychotherapy does raise some interesting First Amendment questions --
say, for instance, that a psychotherapist licensing body forbade
psychotherapists from giving patients certain advice (e.g., advice that
some might see as racist, sexist, religiously bigoted, or what have
you).
But let me approach this a slightly different way -- let's say that
the government provided gave preferential access to some government
property for religious *sermons* but not for other property. Would that
be a constitutionally permissible preference for "worship," or an
impermissible preference for "speech"?
My sense is that it's a mistake for the law to categorize speech
activities as something other than speech; and I think that should be
true of a Mass as well as a sermon. I don't think that "all exercises
of religion that involve _expression_ should be co! nstrued to be speech for
speech clause purposes *rather than* religion for religion clause
purposes" -- I think religious speech is properly understood as *both*
speech *and* religion. But before getting to that general point, I
thought I'd ask Alan what he thought of the more concrete (and I think
quite plausible) example I describe.
Eugene
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Alan Brownstein
Sent: Saturday, November 19, 2005 7:55 AM
To: Law & Religion issues for Law Academics
Subject: RE: Bronx Household of Faith v New York Schools
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 spe! ech 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
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Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
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