I agree with Tom on point 2, but I wonder about point 1. The public
baptism, as I understand it, was public precisely because it was
intended to convey a message to the public ("we're not ashamed of being
Christian"). The baptism is a group ceremony partly because it is
intended to convey a message to the congregation (perhaps "this is what
we believe in, and this person is joining us"). The conduct portion of
the ceremony -- being dunked in the water -- isn't being engaged in
because of any secular noncommunicative effects of the behavior. People
aren't trying to cool off, or exercise their muscles, or enjoy the
feeling of water on their skin, or all the other reasons people go into
the water.
This seems then to be a form of expressive conduct, intended to and
likely to convey a message to both fellow congregants and to the public.
It's no less expressive conduct, I think, than (say) burning a flag or
burning a draft card. The conduct is being barred because it was
religious, under a rule that bars "church services" -- clearly speech --
as well as "religious activities" more broadly. Why isn't this the same
as Rosenberger or Lamb's Chapel? Is it just because the distinction is
based on the religious motivation of the conduct, rather than
specifically the message? Would a ban on any group meetings that are
"motivated by their speakers' religious beliefs" have been OK under
Lamb's Chapel?
Eugene
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C.
Sent: Tuesday, May 25, 2004 8:59 AM
To: Law & Religion issues for Law Academics; Law & Religion issues for
Law Academics
Subject: RE: Baptisms in rivers located in public parks?
Marty, in your post you say that there would be no free speech claim
here, even if the religious ceremony were singled out for prohibition,
because (1) baptism is more conduct than speech and (2) "more
importantly, the state obviously hasn't created any sort of public forum
in the public river." I get point #1, but on #2, are you saying that
even if the activity were highly expressive, singling out of the
religious activity would only trigger strict scrutiny (i.e. be
unconstitutional) if there was a public forum of some kind? If so, I
don't think I agree. Singling out of the religious expression would be
discrimination by viewpoint under Rosenberger, which is unconstitutional
even in a nonpublic forum under repeated statements (albeit perhaps
dicta) in Cornelius, Lamb's Chapel, etc. And as you note, there would
be no plausible claim in this context that the city was somehow
sponsoring or involved with the activity, so that religion could be
singled out in order to avoid establishment concerns. Similarly, I
don't think that Locke v.Davey (or American Library Association) changes
that; although they both rejected the viewpoint-discrimination claim
because no public forum was involved, they were, as you noted as to
Locke, cases about funding rather than access to facilities. Isn't it
still good law that singling out of a religious viewpoint for exclusion
from non-financial access is unconstitutional, or at least triggers
strict scrutiny, even in a nonpublic forum?
Tom Berg
University of St. Thomas School of Law (Minnesota)
From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Mon 5/24/2004 7:41 PM
To: Law & Religion issues for Law Academics
Subject: RE: Baptisms in rivers located in public parks?
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'?"
Yes, I do, sorry about that!
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.)
I assume it is being singled out, given the statement that "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.'"
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."
Why not? As I understood it, here's a major argument in favor of strict
scrutiny under religious accommodation regimes: "Sure, some generally
applicable laws are important in general. But exempting religious
practices would often in fact have no real impact on the government
interest. Applying the law to religious objectors thus isn't necessary
to serve a compelling government interest." So, the argument would go,
while lots of people abuse peyote, in fact it's quite unlikely that
peyote abuse would actually happen in religious ceremonies. While not
educating children is usually bad, the Amish have shown that they take
care of their children well. (I'm actually skeptical of that argument
on the facts in Yoder, but that's what the Court basically held.)
Likewise, if strict scrutiny is the right test, wouldn't the fact that
(1) baptisms are rarely done in very deep water or inclement weather,
and (2) there are lots of people around who can rescue people
substantially undermine the government's claim that applying a generally
applicable rule is *necessary* to serve the compelling interest?
----- 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?
See
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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