Picking up on Marci's comment, suppose a town enacted an ordinance that prohibited the display of signs or banners that held the decedent up to contempt or ridicule (or expressed the message that the decedent deserved to die or was unworthy to be mourned) within 1000 feet of a burial service. Something like the law at issue in Boos v. Barry, but with the goal of protecting the privacy and dignity of the service and mourners. It is a content discriminatory law and should be subjected to strict scrutiny. Does the state have a compelling interest in protecting grieving family members and friends so that they can bury their dead in peace and without offensive disturbances? Alan Brownstein ________________________________
From: [EMAIL PROTECTED] on behalf of [EMAIL PROTECTED]
Sent: Fri 11/2/2007 3:24 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Of Phelps and Persecution
Chris Lund has put the cart before the horse here. Measuring the neutrality of
the law according to whether the organizations' assets are exhausted is
backward. Strong impact of a neutral law does not prove by itself that it is
not neutral -- it just may prove that the religious entity acted in ways that
severely harm others. It is simply a fact that religious organizations -- just
like businesses -- may cause such harm that losing all of their assets even
falls short of what they should owe society for what they have done. Thus, the
impact of the law may well prove a lot more about the wrongdoing within the
organization than the law's neutrality. It is not unconstitutional for a
religious organization to be put out of business by the operation of neutral,
generally applicable laws when the behavior has been as execrable as the
behavior is here.
Now, if the tort law ONLY impacted religious organizations and no secular
organizations (like the law banning sacrifice in Lukumi), there might be some
argument about neutrality, but I have yet to see the tort law that is directed
solely at or works only against religious organizations.
For what it's worth, the speech issue in my view is limited solely to place
analysis. Those arguing that there is something especially problematic in the
delivery of this personal message against a family at this location are very
persuasive. If this group wants to make these points on the apron in front of
the Supreme Court or other public place removed from the family's observance,
they deserve protection, despite the ugliness of their message. Doing it in
physical proximity of a mourning family observing their religious obligations
to their dead is a very different matter. The First Amendment does not
guarantee anyone the optimal location for speech, even when the speech is
otherwise highly protected.
Marci
Marci A. Hamilton
Visiting Professor of Public Affairs
Kathleen and Martin Crane Senior Research Fellow
Program in Law and Public Affairs
Woodrow Wilson School
Princeton University
The Hare Krishnas and Unification Churches faced similarly devastating
verdicts because of IIED and invasion-of-privacy claims brought by private
individuals who wanted their destruction, and that reflected how neutral and
generally applicable tort rules could combine with jury discretion to be
devastingly non-neutral. If I'm remembering Doug Laycock's Remnants piece
right, all of Krishna's land holdings in the United States were put into
receivership to secure just one of the judgments.
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