1. I assume, Eugene, that you meant to write
"Following Locke v. Davey, is it unconstitutional for
the government to say that 'religious activity is specifically
prohibited'?"
If the answer to that question is "yes," I
don't think it's because of the Widmar/Lamb's Chapel
line of cases. The immersion in water is, of course, expressive -- in the
sense that most conduct, and virtually all public religious ritual, is
-- but it's hardly the sort of speech as was involved in those cases.
More importantly, the state in this case obviously hasn't created any sort of
public forum in the public river. Thus, if it's unconstitutional, it's on
Free Exercise grounds, per Lukumi. And that would depend, I
suppose, on whether religious immersion is being singled out, or treated
disfavorably, in any way. Are persons allowed to wade or swim in the river
for nonreligious reasons? (If religion is being singled out for
disfavored treatment, I can't imagine that that's ok under Locke v.
Davey. This is an "access to public lands" rather than a funding,
case; there's no public imprimatur if baptisms are allowed on the same terms and
conditions as other uses of the river; and it's hard to imagine any
legitimate reason -- or any analogy to Locke's reliance on the
historical tradition of government refusing to fund religious activities so as
to avoid endorsement and involvement -- for singling out baptisms for disfavored
treatment.)
2. Whether it would be a substantial burden
under a state RFRA would depend, I suppose, on the availability of
alternative locales. But I wouldn't be so sure the government wouldn't
prevail on "compelling interest" grounds. The fact that many other folks
would be in the water, too -- also at risk of drowning -- is hardly a
ground for an exemption to a "no wading/swimming" rule that otherwise is
uniformly applied to a particular river because (according to the Park Manager)
"there had been four drownings three years earlier."
----- Original Message -----
From: "Volokh, Eugene" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Monday, May 24, 2004 7:07 PM
Subject: Baptisms in rivers located in public
parks?
http://www.fredericksburg.com/News/FLS/2004/052004/05242004/1374047,
discussing a public baptism. Here's the explanation for why the people
involved thought the public nature of the baptism was important:
[begin quote]
For Kris Jones, who describes herself as a quiet person, it was a bold
act of faith.
"For me, it's very hard to do something like that," said Jones, whose
husband, Todd, also was baptized. "I'm kind of quiet--a
nonconfrontational person.
"For me, to do something like that in public was a big step."
But it was that public declaration that Pastor Todd Pyle felt was
important.
"Baptism, originally, was a public display of what took place
inside--that we're not ashamed of being a Christian," Pyle said.
He finds it troublesome that baptisms have moved inside churches and
away from view.
"Christianity is isolated indoors so much that people are confused about
what it is, so we just wanted to bring it outdoors," he said after
coming back to the shore.
[end quote]
Here's the argument that the government is using to restrict it.
[begin quote]
As he was explaining that early Christians knew baptism and a public
profession of faith often assured persecution, Park Manager Brian
Robinson walked up and quietly told Pyle he needed to speak to him.
"It is park policy that we don't allow that kind of thing any more,"
Robinson told him of the baptisms.
He explained that there had been four drownings three years earlier, and
that everyone was discouraged from going into the water.
Robinson added that religious activity is specifically prohibited. "We
don't allow religious activities and church services."
Afterward, Pyle said he'd been unaware of the prohibition. Before his
next baptism, he said he would investigate the rules and if the local
governments forbade it, he'd find another place to go.
[end quote]
Two questions:
(1) Following Locke v. Davey, is it constitutional for the government
to say that "religious activity is specifically prohibited"? I assume
yes, given Lamb's Chapel, Rosenberger, and Pinette, since this activity
is speech as well as religious conduct. Or am I mistaken?
(2) If Virginia had a state RFRA, would an evenhanded restriction on
going into the water be seen as a substantial burden? (I assume that
the rule would fail strict scrutiny, if it had to be exposed to strict
scrutiny, given that it seems relatively unlikely that people would
drown when surrounded by dozens of people.)
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