The condition in Regan was not
content-based: The preferred tax status was eligible only if the
organization agreed not to engage in "substantial lobbying," of any
kind. The Court emphasized this fact: "[T]he veterans' organizations
that qualify under 501(c)(19) are entitled to receive tax-deductible
contributions regardless of the content of any speech they may use, including
lobbying." 461 U.S. at 548.
Eugene, earlier you wrote that
Rosenberger's distinction between religious and political speech wasn't
"bulletproof." That's putting it mildly. The way the Court got
around the problem in Rosenberger was to pretend that the exclusion of
"political activities" there was not content-based, but was instead
simply a prohibition on electioneering and lobbying of whatever
content, partisan or otherwise (shades of Regan), whereas the
exclusion of "religious activity" was viewpoint-based, in that it (allegedly)
covered any activity that
"primarily
promotes or manifests a particular belie[f] in or about a deity or an ultimate
reality." Indeed, the Court indicated that it was not giving more
solicitude to religious viewpoints than to political viewpoints, and that it
would have invalidated an exclusion of the latter, as well: "It is as objectionable to
exclude both a theistic and an atheistic perspective on the debate as it is to
exclude one, the other, or yet another political, economic, or
social viewpoint."
The problem in Rosenberger -- as Souter
pointed out -- is that if UVA had excluded activities reflecting "primarily" a
partisan viewpoint, that arguably would have been
constitutional, per Greer and Lehman. Now,
perhaps Greer and Lehman are wrongly decided insofar as they
permit discrimination against political speech. My point is simply that,
whatever the rules are for political speech, it should be
constitutional for the state to treat religious and partisan speech
exactly the same -- indeed, I think a very strong case can be made that it
violates the Establishment Clause, if not the Free Speech Clause, to treat
religious speech more favorably than political speech, absent some very strong
justification for the distinction.
That's a pretty good rule of thumb, I think -- in
general (although there are exceptions, particularly in light of the
Establishment Clause), the state can, and presumptively must, treat private
religious and poltical speech equally.
----- Original Message -----
From: "Volokh, Eugene" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<religionlaw@lists.ucla.edu>
Sent: Tuesday, November 08, 2005 10:41
PM
Subject: RE: Free Exercise Clause and government
employees
selection of speakers in a lecture series. But let me ask you this,
which doesn't involve the government's own speech: We know that the
government may deny the charitable tax exemption to organizations that
engage in lobbying. See Taxation With Representation v. Regan. May the
government deny the charitable tax exemption to organizations that
engage in religious speech?
I assume the answer is no, because that would be discrimination
against a religious practice, and unconstitutional under the Free
Exercise Clause, see Lukumi and McDaniel. Yet content-based (though
viewpoint-neutral) discrimination against political partisan activity is
constitutional under the Free Speech Clause, see Taxation With
Representation. If I'm correct, then this means that religious speech
is at least sometimes protected against governmental discrimination
based on religiosity even where political speech is not protected
against government discrimination based on its content.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Alan
> Brownstein
> Sent: Tuesday, November 08, 2005 4:55 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Free Exercise Clause and government employees
>
>
> I'm not sure that it does, if we are talking about speech.
>
> For example, in Forbes the Court lists several government
> decisions involving editorial discretion, e.g. picking
> speakers for a lecture series etc. There are also many
> decisions that are not listed that would involve similar
> discretionary functions, e.g. acquiring books for a public
> library. The court suggests that even viewpoint
> discriminatory decisions in these contexts should not be
> subject to rigorous review under the free speech clause.
>
> If the official choosing speakers for the lecture series, for
> example, rejects several possible speakers because their
> viewpoints are deemed unacceptable, speakers expressing
> secular messages could not challenge this decision under the
> free speech clause. Do you think a speaker expressing a
> religious message would have a free exercise claim here, Eugene?
>
> Alan Brownstein
>
>
>
> Finally, Alan's Free Exercise Clause / Free Speech
> Clause is an interesting one, but I wonder how far it would
> go. After all, if the Free Exercise Clause has an
> antidiscrimination component, wouldn't it necessarily end up
> protecting religious speech (as well as religious
> conduct) against discrimination based on religiosity, even in
> situations where the Free Speech Clause doesn't protect
> secular speech against discrimination based on its content?
>
> Eugene
>
> >
>
> _______________________________________________
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