Locke v. Davey is a very odd cite for "a general rule of nondiscrimination against religion in general public programs." It comes out quite the other way. Nothing in the opinion hints at the outcome if the Scholarship Program excluded all students who took religious classes. And your reply ignores entirely the special context of school-sponsored programs in public (elementary and secondary) schools, where the constitutional impediment to official religious speech is at its absolute highest. That can be said with more certainty than almost anything else about the current law of the Religion Clauses.
On 16 Dec 2005 at 15:09, Bezanson, Randall P wrote: > It comes from a general rule of nondiscrimination against religion in > general public programs -- Smith; Rosenberger; Locke v. Davey. I > think one might think of the music case as a tye of limited public > forum, but Public Forum analysis is largely incoherent so I don't > think I would rely on it. I don't think it matters that this is, in > some sense, "public" rather than private speech. It's for a public > occasion; I don't think the choir members would really qualify as > non-private people; and I doubt that this would be considered > government speech. As for the establishment clause justification for > excluding religious music, that seems (except for paying for and > supporting the training of ministers, which the State needn't do) > pretty well disposed of (admittedly in dicta) in Locke. Do you think > that the Washington Scholarship program would have been sustained if > it excluded religious college students or students taking religious > classes, in the name of nonestablishment? I think not. > > But I am first to admit that precious little can be said with > certainty under the religious guarantees these days. > > R. Bezanson > > PS: by the way, I'm a little bit troubled by the religious > sensitivities justification... > > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Lupu > Sent: Friday, December 16, 2005 2:21 PM > To: Law & Religion issues for Law Academics > Subject: RE: New Jersey Lawsuit > > On 16 Dec 2005 at 13:56, Bezanson, Randall P wrote: > > > Welcome to the new First Amendment. Under the Court's decisions > > religious music is not constitutionally compelled to be played, but > > it > > > is unconstitutional to exclude it if it otherwise meets the general > > and secular criteria by which the music for the pereformance was > > selected. > > > Where does that exclusion principle come from? Not from Rosenberger, > because Rosenberger involved private speech in a public forum and the > New Jersey case involves neither. If the exclusion was the product of > anti-religious animus, that might be a problem (Pico?). But if the > exclusion rests on a good faith judgment about religious sensitivities > and Establishment Clause problems, then it fits squarely in the zone > of Establishment Clause discretion that every school official > possesses. For another obvious example -- if a teacher in 12th grade > AP literature employs book selection criteria involving literary > genius and historical importance of the work, is there any doubt that > the teacher may exclude the Bible or the Koran (even if they qualify > on the criteria) out of concern that some parents will object that > their children are being taught religious truths as truths? > > Chip Lupu > > > > -----Original Message----- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of Ed Brayton > > Sent: Friday, December 16, 2005 12:22 PM To: Religionlaw list > > Subject: New Jersey Lawsuit > > > > I want to get everyone's thoughts on the appeals court case against > > South Orange-Maplewood School District in New Jersey. The school has > > a > > > policy not to have religious music performed by the choir or band > > and that policy is being challenged as unconstitutional. Now, I > > think the policy is a bad one for several reasons. But > > unconstitutional? On what > > > grounds? Are there any precedents that apply in this area? It seems > > to > > > me that saying it's not unconstitutional for public schools to > > perform > > > religious music (which I agree with) is quite different from saying > > it's unconstitutional NOT to perform religious music. It seems to me > > that if not playing Christian music amounts to unconstitutional > > "hostility" toward Christianity, then not performing Muslim music > > must > > > also be unconstitutional hostility toward Islam, and also true for > > Hindu music, Jewish music, and so forth. > > > > 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 archive > > > > Ira C. ("Chip") Lupu > F. Elwood & Eleanor Davis Professor of Law The George Washington > University Law School 2000 H St., NW Washington D.C 20052 > > (202) 994-7053 > > [EMAIL PROTECTED] > [EMAIL PROTECTED] > > > _______________________________________________ > 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 archive Ira C. ("Chip") Lupu F. Elwood & Eleanor Davis Professor of Law The George Washington University Law School 2000 H St., NW Washington D.C 20052 (202) 994-7053 [EMAIL PROTECTED] [EMAIL PROTECTED] _______________________________________________ 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.
