The government is indeed limited in its religious speech, which
is why the courtroom postings and school namings might well be
unconstitutional. But (especially given Widmar, Rosenberger, Pinette,
Good News Club, and Lamb's Chapel) it doesn't follow that the government
may discriminatorily restrict religious speech by individuals.
If the individual is a government employee, that does create a
risk that the speech will be seen as government speech. But surely this
is only a risk, not a certainty. People may plausibly assume that any
school naming is the work of the government, and not just a private
decision by a particular person who happens to be employed by the
government. Yet students hardly assume that anything the RA says is
government speech; of course much of it is just the RA's own views. And
this is especially so if the RA is seen as on-duty all the time (which
as I understand it is part of UW's argument). Of course an all-the-time
on-duty employee, especially in an environment, such as the university,
where people are expected to express their own opinions on all sorts of
things will often be expressing just his own views. There's no good
reason for students to assume that an RA who conducts a Bible Study in
his room is speaking on behalf of the school -- especially if, as seems
very likely the case, most RA's don't conduct Bible Studies, which would
be odd if the Bible Studies were somehow the university's own speech.
At most, a university that perceives a risk that the RA's speech
will be attributed to the university should require the RA to post a
prominent disclaimer. University students can, I think, be expected to
understand such a disclaimer. I don't think the disclaimer is needed,
for reasons I mentioned above; but it will indeed suffice, and given
that, I continue to think that the university may not discriminatorily
prohibit religious speech by RA's.
By the way, what do people think of restrictions on speech by
public university professors? Say that one of us published an article
that endorsed atheism, or criticized Catholicism (e.g., because it's
oppressive to women or homosexuals, because it wrongly opposes abortion
or cotnraception, or just because we think that it's based on irrational
assumptions). Say that we do radio programs on these subjects from our
offices, and post discussion list posts on the subject from those
offices. May the university bar us from engaging in such pro- or
anti-religious speech, for fear that students might question our
commitment to not discriminating against them based on religion? May
the university bar us from engaging in such pro- or anti-religious
speech from our offices? May the university bar us from engaging in
such speech, for fear that people will wrongly perceive our statements
as expressing the university's position rather than just our own?
Eugene
Steve Sanders writes:
> > We surely would oppose a judge's wearing a robe with the Ten
> > Commandments written on it, but we'd say the same to a robe
> that had
> > political or ideological slogans written on it.
>
> Is that exactly right, though? A courtroom could not post a
> crucifix, but it could post the Declaration of Independence.
> The Declaration is not positive law, but it surely expounds a
> political ideology.
>
> A school district probably shouldn't name a public school for
> Jesus or Buddha, but it could name one for Martin Luther
> King. When it does, it does so, it seems to me, because King
> is an icon of particular ideologies (racial
>
> equality, non-violent social change) that government is free
> to endorse.
>
> A public university cannot have an official religion. Yet
> there are all sorts of "ideologies" it may codify without
> running afoul of the
> Constitution: "diversity," "pluralism," "critical thinking,"
> "holistic wellness." (I'm leaving aside arguments here about
> "secular humanism.")
>
> Maybe Eugene would say those aren't what he means by
> ideologies. But isn't that the problem? Most of us at least
> recognize partisan political activity when we see it;
> "ideology" seems impossibly vague.
>
> On a different note, since the UW case seems an
> establishment/free exercise hybrid, isn't Locke v. Davey
> relevant? (I can't recall if someone has already mentioned
> this.) For the same reasons Washington's desire to avoid
> perceived establishment did not infringe Davey's free
> exercise, I'd say it doesn't violate the RA's free exercise
> for UW to discourage employees from conducting devotional
> exercises in the space where they carry out state university business.
>
> The RA *could*, it seems to me, organize a screening and
> discussion of "The Passion of the Christ," even though
> religious speech obviously would occur, so long as it were
> conducted in a way that advanced a legitimate educational
> purpose. I think that's actually the apposite comparison to
> the RA who staged Vagina Monologues. But screening "Passion
> of the Christ" for
> (secular) educational purposes seems different than running
> Bible study under the banner of Campus Crusade for Christ.
>
> Steve
>
>
>
> _______________________________________________
> 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.
