Eugene accurately describes the school board's briefs in these cases. And the captive audience argument in Oliva is at least plausible, so that that case is different from the cases decided in the Supreme Court. But Stafford should have been a routine case about announcing meetings of a private club.
There is no decision of the Supreme Court that permits or requires discrimination against private religious speech because of its religious content. The line of cases protecting religious speech go back at least to the the Jehovah's Witness cases in the 30s and 40s, and there are no exceptions. The secular school boards in the north and west who keep resisting private religious speech are as obstructionist and defiant as the evangelical school boards in the south who keep resisting the school prayer cases. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 04, 2005 11:15 AM To: Law & Religion issues for Law Academics Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of HostilitytoReligious Expression 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 that 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 religious 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 Of 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 when 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 _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
