I’m with Doug on this: It’s hard for the school to honestly
disclaim endorsement and preferential treatment when it deliberately invites a
member of the clergy, precisely because he is a member of the clergy. It’s
much easier to make clear to people that there is no endorsement or
preferential treatment when the school says, honestly, that this is a public
access program that all groups can equally access, and that the church isn’t
being given any special access because it’s a church or because the school
endorses its message.
Indeed, I take it that if a school opens up its facilities for
nonworship programs, it would still want to make clear to people that it isn’t
endorsing that group, whether the group is the Sierra Club or the Young
Americans for Freedom or whoever else – or for that matter a religious group
that isn’t engaged in worship services. Presumably the school thinks, and I
think correctly so, that it will be easy enough to make this clear. It
shouldn’t be any harder for worship services.
Finally, if the concern is that students might view endorsement
from the fact that the school is open that way every Sunday, nothing stops the
school from limiting the number of times one group can use the school each
year. And if the school thinks that this isn’t necessary, because it can let
(say) the NRA use the school each Sunday without people thinking that the
school endorses the NRA – presumably because that’s either already clear or
could be made clear – then I think the school can equally let the church use
the school each Sunday (with the proper disclaimers) without fear of undue
confusion on the public’s part.
Eugene
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
Sent: Monday, August 15, 2011 10:18 AM
To: religionlaw@lists.ucla.edu
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,
vol...@law.ucla.edu 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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