I can imagine at least two grounds on which the use of the park for the baptism could be prohibited without raising serious legal question:
1. I suspect that the river or stream or pond in the park is not generally open to the public for immersion or swimming -- and if so, prohibiting the baptism would be application of a generally applicable conduct restriction that doesn't single out speech. 2. Moreover, far from using a "traditional public forum" -- e.g., a speaker's corner, offering expression to the general public -- the group here wished to engage in a "private" event that would not be "open to the public." Unless the State generally allows use of the park for "not open to the public" events -- which would presumably create a designated or limited, not traditional, public forum -- that might be another ground for denial here. The problem here is that the State (apparently) did not invoke either of these reasons, but instead cited the state constitutional prohibition on the expenditure of funds for "any religious worship." Whether the *Widmar/Good News* line of cases does or should extend protection beyond religious instruction or discussion to religious *worship services*, as such, is actually an unresolved question, as Souter's *Good News* dissent suggests (although I don't think it's difficult to predict how the current Court would come out). A divided Second Circuit panel recently held that a school *could *exclude religious worship services from a school on Sundays -- at least where that was the predominant use of the school on those days, virtually turning it into a church one day a week: * http://tinyurl.com/436mas4.* An en banc petition has been filed in that case. If the full court of appeals doesn't reverse, I think the SCOTUS will do so on free speech grounds -- although in my view, FWIW, it should be treated more as a *Lukumi * free exercise case than a *Widmar/Good News* free speech case. On Mon, Aug 15, 2011 at 12:20 AM, Volokh, Eugene <vol...@law.ucla.edu>wrote: > Any thoughts on this incident? It sounds to me like the > church should win in *Widmar v. Vincent* – if a university can’t exclude > religious worship from a designated public forum, it surely can’t exclude it > from a traditional public forum, no? Indeed, the baptism would presumably > involve not just speech but also the immersion of a person in water (if > that’s the kind of baptism that’s involved); but I take it that this is > expressive conduct, and expressive conduct that isn’t being limited because > of some harms that supposedly flow from its physical properties (such as the > risk of drowning or some such). Or am I missing something here?**** > > ** ** > > Eugene**** > > ** ** > > *Feed:* Religion Clause > *Posted on:* Sunday, August 14, 2011 10:46 AM > *Author:* Howard Friedman > *Subject:* Washington State Denies Permit For Baptism Ceremony At State > Capitol Park**** > > ** ** > > In Olympia, Washington, Heritage > Park<http://www.ga.wa.gov/visitor/Parks/HP.htm>is a 24-acre state-owned park > next to the state capitol campus. The state > will issue permits for events to be held at the park. Today's Bellingham > (WA) > Herald<http://www.bellinghamherald.com/2011/08/13/2141468/state-rejects-olympia-churchs.html>reports > that the state's Department of General Administration has given > Reality Church of Olympia a permit for a barbecue and picnic to be held > today, but has denied its request to conduct a baptism along with the event. > The Department, deciding an appeal of an initial denial, said that the > state constitution bars the use of public property for religious worship. > The church had argued that its free speech and free exercise rights were > infringed by the denial.**** > > **** > > > View > article...<http://religionclause.blogspot.com/2011/08/washington-state-denies-permit-for.html> > **** > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > 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. >
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