I agree with Eugene that Judge Alito seems to be a strong defender of the free speech rights of private religious speakers. That is a strong pont in his favor.
But I think Marty is right that the Court has already made great strides toward protecting private religious _expression_. There is still ground to be covered here (Oliva and Davey are examples), but one of the great civil liberties victories of my lifetime has been the Court's acceptance of equal access for private religious speakers.
But Judge Alito, like Justice Scalia, may also believe that the Lemon test and the endorsement test have gone too far in the direction of hostility toward mere government recognition of religion and religious holidays. If the state can celebrate gay pride week, and Cinco de Mayo, and Earth Day, and pork producers day on the public square, then why can't it also celebrate Christmas or Chanukah or Ramadan with a passive dispaly in the public parks or a party at school?
Rick Duncan
"Volokh, Eugene" <[EMAIL PROTECTED]> wrote:
I suspect that Alito's response was in large part a reaction to
two cases that he heard on the Third Circuit: Child Evangelism
Fellowship of New Jersey Inc. v. Stafford Tp. School Dist., 386 F.3d 514
(3rd Cir. 2004), and C.H. v. Oliva, 226 F.3d 198 (3rd Cir. 2000).
In both, the government's lawyers -- presumably not ones who are
easily duped by "unrelenting rhetoric we hear from the right" --
apparently argued that the Establishment Clause required government
entities to discriminate against private religious speech (i.e.,
religious speech by students or by private organizations, not religious
speech by school officials in their official capacity) in schools. In
Oliva, the lower court seemed to at least partly endorse this view,
though its comments are a little cryptic. (And of course in Oliva, the
Third Circuit ultimately concluded tha! t the school was entitled to
discriminate against the religious speech, though it didn't hold that
such discrimination was required.) I haven't read the briefs in those
cases, but if I were the government lawyer making that argument, I'd
certainly have something to point to in the Court's decisions -- for
instance, the concurrences in Pinette, which seem to suggest that the
Establishment Clause sometimes may require discrimination against
private religious speech, and even the plurality in Pinette, which says
that compliance with the Establishment Clause is a compelling interest
justifying what would otherwise be a violation of the Free Speech Clause
(rather than that compliance with the Free Speech Clause is an adequate
justification for what would otherwise be a violation of the
Establishment Clause).
My guess is that if Alito did say that the Court's doctrine
"really gives the impression of hostility to religious speech and
reli! gious _expression_" and that "the court had erred by going too far in
prohibiting government support for religion at the risk of hampering
individual _expression_ of religion" -- I say "if" because my sense is
that it's hard to be confident of the accuracy of such second-hand
quotes -- he was likely alluding to what he saw while participating in
those cases: The Court's doctrine has created, among many government
officials (as well as among critics of those officials) an impression
that private religious speech is in some measure constitutionally
disfavored, and that private religious speech can be and perhaps must be
subject to special restrictions. And that strikes me as quite a
sensible criticism of the Court's doctrine, though of course there are
also quite sensible defenses of the Court's doctrine.
Eugene
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf O! f Ed Brayton
Sent: Friday, November 04, 2005 8:42 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of
Hostilityto Religious _expression_
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Francis
Beckwith
Sent: Friday, November 04, 2005 9:21 AM
To: Law & Religion issues for Law Academics
Subject: Re: Alito Views SCOTUS Doctrine as Giving Impression of
Hostility to Religious _expression_
I don't want to be too picky here, but Alito is saying "impression of
hostility," not necessarily "hostility." So, in a sense, he does not
disagree with Marty. Alito says "impression," and Marty says
"misperception." A misperception is in fact an impression, but an
inaccurate one.
I do think that Alito is correct that there is an impression of
hostility. Now whether that impression is justified is ever or always
justified is another question. But clearly Alito is justified in saying
that many ordinary people in fact have that impression.
I'm going to suggest that a large part of this misconception is the
result of the almost unrelenting rhetoric we hear from the right
claiming that the courts are hostile to religion, want to stamp it out
from society, have "thrown God out of the schools" and so forth. I've
had countless conversations with people who are shocked to find out what
the courts have actually ruled on various religious _expression_ cases,
people whose sole source for information about the courts are religious
right leaders who engage in the most inflammatory rhetoric about
"judicial tyranny" and "unelected judges" who are busy "destroying
America's Christian heritage" and so forth. Inevitably, these folks are
sure that no student can dare to speak about their religious views in a
public school, and wh! en I point out to them the various rulings by which
the courts have explicitly protected the rights of students to choose
religious subjects for papers, to use school facilities for bible clubs,
to hand out religious literature to their fellow students, etc, some of
them simply can't believe that I'm telling them the truth because
they're so convinced by this extreme rhetoric. As Marty points out, the
courts have done more to protect religious _expression_ in a wide variety
of ways in the last few decades than any other form of speech, which I
generally applaud as a good thing. But the fact is that most Americans
know nothing at all about actual court rulings and get their information
from less than reliable sources. And when their only source of
information on this subject engages in inflated and wildly inaccurate
rhetoric about the courts, it's small wonder that there is such a
misperception out there.
Ed Brayton
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Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle
"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner
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