I agree with Marty that the result in Santa Fe -- the case that Alito
allegedly discussed with Sen. Cornyn -- was to strike down speech that was
government preferred or sponsored, because of the majoritarian nature of the
election process and the school district's past practice. But some of the
language of the Stevens majority opinion goes further and suggests that the
school's endorsement of the speech was "established" by other factors as
well, such as the mere fact that the prayer or religious speech was at a
"school-sponsored function . . . on school property," with the trappings of
the school around it. This reasoning, taken alone, would require stopping
even the valedictorian -- chosen neutrally on the basis of grades, with no
school review of the speech's content -- from speaking religiously at
graduation. That's what happened in the panel decision in the Madison case
that Mark Scarberry describes (decided before Santa Fe, but on similar
reasoning). It could also support the kind of argument in the Oliva case
that Eugene suggests bothers Alito.
I know that we have sharp disagreement on the list about whether the
valedictorian's speech should be protected or forbidden. But the position
that it should be protected -- should be treated as individual rather than
state-sponsored speech -- couldn't colorably be said to be a major reversal
of the Court's precedents, or a central threat to the rule against
government-sponsored and government-preferred speech, could it? (Even if
one disagrees with the position.)
I think that senators should ask about this, but they should try to find out
whether any reservations Alito has about the Santa Fe case go to the
holding, or to some of the broader reasoning and dicta.
Tom Berg, University of St. Thomas (Minnesota)
-----------------------
Thomas C. Berg
Professor of Law
Co-Director, Terrence J. Murphy Institute
for Catholic Thought, Law, and Public Policy
University of St. Thomas School of Law
MSL 400 -- 1000 La Salle Avenue
Minneapolis, MN 55403-2015
Phone: (651) 962-4918
Fax: (651) 962-4996
E-mail: [EMAIL PROTECTED]
-------------------------------------------------------
-----Original Message-----
From: Scarberry, Mark [mailto:[EMAIL PROTECTED]
Sent: Friday, November 04, 2005 12:49 PM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostility
to Religious Expression
The Ninth Circuit has the impression that the Supreme Court's precedents
require discrimination against the religious speech of students. In Doe v.
Madison School District (for which I wrote an amicus brief), a panel of the
Ninth Circuit held that a school district could allow high school student
graduation speakers chosen on basis of their grade point average to express
themselves without censorship of religious or other content. The full 9th
Circuit granted rehearing, vacating the panel decision, and then dismissed
the case as moot because the student who had challenged the policy had
already graduated -- and the Ninth Circuit did so even though the student
had sued under a pseudonym and thus had control of whether or not to
disclose that he or she had graduated.
In later cases the Ninth Circuit held that school officials must censor such
student speeches to remove objectionable religious content. I'd say that was
Lee v. Weisman on steroids, but nevertheless the Ninth Circuit had the
impression that such censorship was required by Supreme Court Establishment
Clause doctrine.
I must say that I am encouraged by Judge Alito's dissent in C.H. v. Oliva.
Mark S. Scarberry
Pepperdine University School of Law
-----Original Message-----
From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Friday, November 04, 2005 9:15 AM
To: Law & Religion issues for Law Academics
Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostilityto
Religious 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
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_______________________________________________
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To subscribe, unsubscribe, change options, or get password, see
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Please note that messages sent to this large list cannot be viewed as private.
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read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
