The post quoted below was about the baptism-in-the-park
scenario – in which the parks are treated by traditional public forum doctrine
as being opened to encourage a diversity of views – not about the school
scenario. Where the school scenario fits is hard to tell, given the puzzling
nature of the distinction that Locke draws.
Eugene
From: Marty Lederman [mailto:[email protected]]
Sent: Monday, August 15, 2011 12:54 PM
To: Law & Religion issues for Law Academics <[email protected]>
Subject: Re: Widmar v. Vincent redux, though in a traditional public forum?
What if, as is likely the case, New York's purpose in opening its schools for
private uses on Sundays is not "to encourage a diversity of views from private
speakers," but instead simply to generate income, whether the uses are for
speech or otherwise?
On Mon, Aug 15, 2011 at 12:43 PM, Volokh, Eugene
<[email protected]<mailto:[email protected]>> wrote:
Well, the state constitutional defense for the exclusion was
raised in Widmar as well and rejected; and the worship-nonworship line was
rejected, too. So I don’t think the play-in-the-joints argument is consistent
with Widmar.
Davey’s response to Rosenberger was simply that, “The purpose
of the Promise Scholarship Program is to assist students from low- and
middle-income families with the cost of postsecondary education, not to
‘encourage a diversity of views from private speakers.’ Our cases dealing with
speech forums are simply inapplicable.” I’m skeptical about this analysis; but
even accepting it, as we must, this case is on the Rosenberger/Widmar side, not
the Davey side, because according to traditional public forum analysis one
purpose of parks is precisely to “encourage a diversity of views from private
speakers.”
Eugene
From:
[email protected]<mailto:[email protected]>
[mailto:[email protected]<mailto:[email protected]>]
On Behalf Of Bezanson, Randall P
Sent: Monday, August 15, 2011 8:32 AM
To: Law & Religion issues for Law Academics
Subject: RE: Widmar v. Vincent redux, though in a traditional public forum?
You are quite right about Locke, Eugene, but I'm not sure that that settles the
matter. Washington justified its exclusion of those studying for the ministry
on grounds of its own constitutional guarantee of separation of church and
state, and the Court accepted that this fell within the State's power via the
religion clauses' room in the joints. Logically, that seems analogous. I
remember in the old days when I was serving as counsel and then VP at the U of
Iowa, that our position was that rooms for religious groups to gather were
fine, but holding church services wasn't because it crossed the EC line. I
also realize that that was over 30 years ago and much water has gone over the
dam, maybe enough to make my old view nothing but a quaint relic.
I didn't look specifically at Widmar when I offered the room in the joints
thought, so perhaps I'm just tilting at windmills. Yet the logic via Locke
seems apt.
Randy
________________________________
From:
[email protected]<mailto:[email protected]>
[[email protected]<mailto:[email protected]>]
on behalf of Volokh, Eugene [[email protected]<mailto:[email protected]>]
Sent: Monday, August 15, 2011 9:45 AM
To: Law & Religion issues for Law Academics
Subject: RE: Widmar v. Vincent redux, though in a traditional public forum?
I’m not forgetting that, but my sense is that Locke treated a
financial subsidy for the benefit of listeners as quite different from the
Widmar et al. scenario of access to government property for speakers and
listeners. It certainly didn’t say anything to suggest that it was cutting
back on Widmar. Or am I missing something there? (Widmar et al. after all
also involved “old-time separationist view[s],” whether “respectable” or not;
but the Court rejected that view there, and even many “old-time
separationist[s]” signed on to the rejection.)
Eugene
From:
[email protected]<mailto:[email protected]>
[mailto:[email protected]<mailto:[email protected]>]
On Behalf Of Bezanson, Randall P
Sent: Monday, August 15, 2011 3:51 AM
To: Law & Religion issues for Law Academics
Cc: [email protected]<mailto:[email protected]>
Subject: Re: Widmar v. Vincent redux, though in a traditional public forum?
Well ... Don't forget Rehnquist's "play in the joints" from Locke v. Davey,
also a Washington case, by the way. Te state's position seems like a perfectly
respectable old-time separationist view.
Randy Bezanson
U Iowa
Sent from my iPad
On Aug 14, 2011, at 11:24 PM, "Volokh, Eugene"
<[email protected]<mailto:[email protected]>> 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.
Error! Filename not specified.
View
article...<http://religionclause.blogspot.com/2011/08/washington-state-denies-permit-for.html>
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