I suppose I should have written "religious worship services *standing alone*." If I recall correctly, the premise of the CTA2 decision in *Bronx Household * is that if -- unlike in *Widmar* -- a state generally treats religious expression and nonreligious expression equally, and imposes a restriction only on religious *worship services*, not because of the content or viewpoint of those services, but because they are functionally unlike any of the other permitted uses, the *Widmar/Good News *line of cases does not govern the case. I doubt the SCOTUS will buy it, but that's the theory.
On Mon, Aug 15, 2011 at 10:30 AM, Volokh, Eugene <vol...@law.ucla.edu>wrote: > I agree entirely that it matters what grounds the state > gives, and grounds 1 and 2 might well have been adequate – but as Marty > points out, the state’s grounds were not either 1 or 2, but simply that the > group was engaging in religious worship.**** > > ** ** > > But as to whether *Widmar* protects religious worship > services as such seemed to be answered “yes” by *Widmar* itself. The > unresolved question, as I understand it, is whether in a *nonpublic forum*(or > a limited public forum), where content discrimination is allowed but > viewpoint discrimination as not, a “religious worship” vs. “nonworship > religious speech” line could be drawn. But given the *Widmar* precedent > for a designated public forum, why wouldn’t the exclusion of religious > worship be a fortiori unconstitutional in a traditional public forum?**** > > ** ** > > Eugene**** > > ** ** > > On Mon, Aug 15, 2011 at 8:07 AM, Marty Lederman <lederman.ma...@gmail.com> > wrote:**** > > 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.**** > > _______________________________________________ > 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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