A relatively brief response that does not do justice to Eugene's thoughtful comments -- but it is all I have time for right now.
Eugene and I agree in a sense on at least one point, I think. We agree that under his interpretation of the free speech and religion clauses, religion specific accommodations of religious practices with some expressive dimension to them are unconstitutional. I think that's wrong, in significant part because I think religion is different than speech both in terms of what it actually is and for constitutional purposes -- because we are trying to accomplish different things with the religion clauses and the free speech clause and treating religion as speech distorts the distinction between those purposes. We have gone over this in the past on many prior posts. I recognize that there is an overlap in life and in constitutional law between religion and speech, so that there are some situations in which the best approach is to evaluate the promotion or regulation of religious speech under the speech clause. But the overlapping tail should not wag the dog. I look at a lot of religious practices holistically, not in terms of specific component parts -- which may involve speech to a greater or lesser degree. To me, a religious service is something different than a gathering of people who talk and sing. And I believe the constitution recognizes that difference. Those who think differently will agree with Eugene and reject religion specific accommodations of services and expressive rituals on free speech grounds. I assume that they would also reject religion specific accommodations of houses of worship and the operation of houses of worship. As for the government official who delivers a sermon in his official capacity, I think Eugene is correct that this would constitute a prohibited establishment of religion. I see no contradiction between that conclusion and the conclusion that the regulation of a similar sermon by a private individual would be reviewed under the free speech clause. The Establishment Clause and the Free Exercise serve different purposes and the lines courts draw between speech and what would be considered the establishment of religion differ in important ways from the lines courts draw between speech and what would be considered the exercise of religion. Thus, for example, the Court's cases seem to suggest rightly or wrongly that only obligatory rituals are protected by the free exercise clause. There is no comparable requirement under the Establishment Clause. Perhaps my earlier post was not as clear as I thought it was, so let me try to be clearer this time around. The question is whether we will characterize government conduct promoting or regulating religious expressive activities as accommodating the free exercise of religion, endorsing or establishing religion, or abridging freedom of speech. For any specific state action promoting or regulating religious expressive activities, we have to choose among alternatives. Some government expression of religious messages will be held to be endorsements or promotions of religion in violation of the establishment clause or they will be held to be permissible government speech. (I think Eugene agrees with this -- leaving open the important question of where we would draw that line.) Some religion specific government accommodations of religious expressive activities will be upheld as permissible accommodations of the exercise of religion or they will be struck down as content or viewpoint discriminatory regulations of speech. (This, I believe, is where Eugene and I disagree.) I think this latter situation is like the Establishment Clause problem. For establishment clause purposes, there are some situations where even though what the government is doing can be considered "speech" in some sense, for constitutional purposes it constitutes the establishment of religion and can be treated differently than other government speech. Similarly, I suggest, that for free exercise and religious accommodation purposes, there are some situations where even though what a private individual is doing can be considered "speech" in some sense, for constitutional purposes it constitutes the exercise of religion and can be treated differently than other private speech. If I understand Eugene correctly, he rejects this latter possibility and argues that the religion specific protection or accommodation of all religious practices that involve speech must be rigorously reviewed under the speech clause as content or viewpoint discrimination. For the reasons stated above, I respectfully disagree. Alan Brownstein -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Monday, November 21, 2005 10:45 AM To: Law & Religion issues for Law Academics Subject: RE: Bronx Household of Faith v New York Schools 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. _______________________________________________ _______________________________________________ To post, send message to [email protected] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
