Sorry if I was less clear than I ought to have
been, Tom. My principal point was not that the river is a "nonpublic
forum" for private speech, but that it isn't a "speech forum"
of any kind. Nor do I think it's plausible to say (at least I
hope it's not plausible to say) that the city is "singling out"
religious use of the river because of the religious viewpoint
involved. Presumably, the city is prohibiting baptism because of its
decidedly non-expressive elements, viz., that it involves one person submersing
another (often an infant) in water, and the government is completely
indifferent to any "viewpoint" that the conduct might incidentally
express.
Of course, if it could be demonstrated that
the city's interest truly were to prevent the _expression_ of religious
viewpoints on public grounds, then that would raise serious Free Speech
Clause questions even in the absence of a speech "forum" (i.e., even if
Rosenberger, et al., do not apply), because of the oft-invoked
principle that "even in the provision of subsidies, the Government may not
'ai[m] at the suppression of dangerous ideas.'"
Finley, 524 U.S. at 587 (quoting Regan). Even then, of
course, invalidation would by no means be a sure thing, because the Court is
reluctant to look behind the face of an ordinance to discover the illicit
"aim." See, e.g., Erie v. PAP's, 529 U.S. at
292.
For these reasons, as well as those expressed
in my previous post, I think that if there is a real problem here, it is
much more likely to be addressed under the Free Exercise Clause, and
Lukumi, than under the Free Speech Clause.
----- Original Message -----
From: "Berg, Thomas C." <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<[EMAIL PROTECTED]>; "Law
& Religion issues for Law Academics" <[EMAIL PROTECTED]>
Sent: Tuesday, May 25, 2004 11:58 AM
Subject: RE: Baptisms in rivers located in public
parks?
> 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" < <mailto:[EMAIL PROTECTED]> [EMAIL PROTECTED]>
> To: < <mailto:[EMAIL PROTECTED]> [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>
> 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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