Lee v. Weisman was not about confusion. It was about actual government
sponsorship.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: [email protected]
[mailto:[email protected]] On Behalf Of [email protected]
Sent: Monday, August 15, 2011 1:18 PM
To: [email protected]
Subject: Re: Establishment Clause, equal access, and confusion
The 2d Cir does not disagree with the equal access point, but rather says that
the School Dist is prohibiting an activity, not expression per se. In fact,
prayer, religious instruction, expression of devotion to God, and the singing
of hymns are not prohibited. What is excluded is full-scale worship services
with all that entails. Worship services are not "student groups", but rather
collections of adults and children.
If a student group engaging in proselytizing activities a la Rosenberger were
the equivalent of a worship service, Eugene might be correct. The 2d Cir. is
saying that there is no such equivalence here.
On the confusion point, I would think that you are more likely to have
confusion about government endorsement when a school is transformed into a
church for a full day each week than when you have a short prayer announced at
graduation. Yet, the latter is unconstitutional under Lee v. Weisman. The
disclaimer proposal is insufficient to forestall children and everyone else,
actually, from thinking that P.S. 151 is in fact Evangelical, or Buddhist, or
whatever, when it is the worship home for a congregation.
I don't know if you have noticed, but it is a fact that politicians routinely
favor their own religion, so it is perfectly reasonable to conclude that a
school board opening the door to a particular religious group for their most
important religious activity, worship, is an endorsement of that religious
group. And the school board's rejection of a particular religious group's
application, even if based on neutral principles, also would raise serious
questions about endorsement. Thus, the prohibition is necessary to avoid an
Establishment Clause violation.
Marci
In a message dated 8/15/2011 12:40:58 P.M. Eastern Daylight Time,
[email protected] writes:
But this possibility that a few people might be confused, even when the
government makes clear that all it’s offering is equal access – just like the
equal access offered to religious groups in many contexts, such as tax
exemptions, the use of GI Bill grants, and so on – doesn’t strike me as reason
enough to reject equal access.
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