Alan Brownstein writes:
> 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.
I'm not quite sure how this would work. We call sermons
precisely because they are speeches (of a certain sort) on a religious
topic. If they're part of a "larger religious service," they're usually
so because they (1) involve people gathering together to hear a speech
on a religious topic, (2) are themselves speech on a religious topic,
and usually (3) involve people expressing prayers on religious topics,
which are themselves speech on a religious topic. Now I realize that
some sermons also involve behavior -- usually symbolic behavior -- that
isn't literally speech, such as consuming alcohol or grape juice. But
why should the addition of this behavior allow the government to give
preferential access to sermons (the hypothetical that we're discussing),
while exclusion of this behavior would require the government to deny
preferential access to sermons? What if the religious book tax
exemption in TM v. Bullock applied only to sales of religious books that
were accompanied with expressive conduct that isn't literally speech
(e.g., sale of a religious book together with a rosary)? Would it then
escape the requirements of content neutrality enunciating in Justice
White's and Justice Blackmun's and O'Connor's concurrences?
>
> My question for Eugene is this: If you characterize religious
> expression as both speech and religion, which constitutional
> provisions control questions about whether the government can
> promote the speech or regulate it.
All of them. The Free Exercise Clause would bar the government
from discriminating against the practice because of its religiosity.
The Free Speech Clause's rule of content- or viewpoint-neutrality
(whichever is applicable given the nature of the forum) would apply to
government classifications based on the content of the speech. The
Establishment Clause would limit the government's power to promote the
expression because of its religiosity (though there are of course
debates about the extent to which the Establishment Clause does limit
such power).
> 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.
I don't think that's right; it seems to me that speech should be
characterized as speech, because, well, it's speech. The Establishment
Clause, however, has been interpreted as limiting this particular kind
of government speech, not because it's "religion" "rather [than]"
"speech," but because it's religious speech.
What's more, I wonder what the implications of Alan's proposal
would be for the sermon example. Alan writes that "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." But I
take it that Alan thinks that the Establishment Clause bars government
officials -- acting on the government's behalf -- from delivering
speeches on a religious topic that endorse (or at least sufficiently
endorse) a certain religious perspective. Why? If Alan answers that
it's because the sermon "is not characterized as speech . . . but rather
is recognized to be religion which the state can not endorse or
establish," then it follows that the preferential treatment for private
sermons is permissible, since it's an accommodation of religion, and not
a preference for speech. Yet I take it that isn't Alan's approach to
the private sermons -- so it follows that the sermon, whether public or
private, *is* speech, though the government is not allowed to engage in
this speech.
> 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 activity they attended or participated in.
This is a very interesting question, but it seems to me that the
answer is that such excused absences are required, at least subject to
some Welch-like felt importance requirement. Nor should it matter
whether the school only gives exemptions for going to "worship" or also
going to a "sermon"; I'm not even sure that there's a constitutionally
permissible way for the school to distinguish the two.
> 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?
Hasn't Title VII been generally interpreted as applying to
secular belief systems as well as religious ones, again following Welch?
> 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.
Well, it seems to me that Texas Monthly v. Bullock establishes
an understanding of the First Amendment that -- coupled with Rosenberger
et al. -- suggests that preferences for religious speech that's labeled
"worship" are indeed presumptively unconstitutional.
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