I think that any analysis of the structure of the First Amendment has to begin with a decision as to what religion is. If it is only a variety of "speech" then one might reach one set of conclusions. If religion is something more than speech, then it becomes difficult to argue that the various First Amendment Clauses all blend together somehow.
The problem is that the "speech only" understanding of religion privileges some religions, and disfavors liturgical religions. -----Original Message----- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, April 10, 2006 1:23 PM To: Law & Religion issues for Law Academics Subject: RE: Excessive entanglement Well, this is what seems to me to be the puzzle. The text surely does mention religion explicitly, so it's possible that religious institutions should be treated differently. But it also mentions speech explicitly, and protects freedom of speech as well as free exercise of religion, so it's possible that in those zones where the concern is protection of religion, speech, and press from the government, the three should be treated the same. If we are concerned that excessive entanglement between government and religion will lead the government to unduly control, surveill, inspect, and intrude on religious institutions, why shouldn't we be equally concerned that excessive entanglement between government and leading privately run speaking (here opinion-molding and idea-transmitting) institutions will lead the government to unduly control, surveill, inspect, and intrude on those privately run speaking institutions? One possible answer is that the Religion Clause, with its establishment and free exercise component, reads differently from the Speech/Press Clause. But why is it proper to put excessive entanglement *as a threat to the independence and integrity of religious institutions* in the category of those things that lead to constitutional concern only as to religion, rather than in the category of those things that lead to constitutional concern as to religion, speech, and press? I can certainly see why excessive entanglement *as a concern about preference for religion* would be put in the religion-is-special box. But given that both the Religion Clause and the Speech/Press Clause are concerned about protecting institutions from undue government intrusion, why isn't excessive entanglement *as a concern about undue control of/surveillance of/inspection of/intrusion on institutions* an equal concern as to religious institutions and privately run speech/press institutions? Eugene > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Newsom Michael > Sent: Monday, April 10, 2006 9:50 AM > To: Law & Religion issues for Law Academics > Subject: RE: Excessive entanglement > > > I think that when it comes to religious organizations, the > Religion Clauses create a zone of autonomy that may have > quite different contours than is the case with newspapers and > universities. Certainly, as to universities, how do we > explain *public* universities? Obviously there we permit, if > not insist upon, rather pervasive monitoring, don't we? And > even with regard to private universities, governments > regulate any number of activities and functions that they do > not regulate when it comes to religious organizations. > Employment comes to mind, just for openers. > > Newspapers are perhaps more interesting. But, here again, > doesn't the government intrude into such areas as employment > in ways that the government does not in connection with > religious organizations? Surely there are other examples, > none of which seem particularly controversial, > troublesome, or problematic. (By the way, recall the "excessive > entanglement" that existed with regard to *broadcast* media > by virtue of licensing requirements regarding the use of > assigned frequencies in the electro-magnetic spectrum.) > > The autonomy of universities and newspapers seems to generate > less practical and less constitutional concern than does the > autonomy of religious institutions. And, I think, the > constitutional text suggests > -- if not commands -- that this be so. > > > -----Original Message----- > From: Volokh, Eugene [mailto:[EMAIL PROTECTED] > Sent: Saturday, April 08, 2006 3:42 PM > To: Law & Religion issues for Law Academics > Subject: RE: Excessive entanglement > > Yes, but why was the monitoring (a large part of the asserted > entanglement) an impermissible entanglement? I take it that > this is because it would risk putting the religious schools > too much under the supervision and potential control of the > government. The monitoring would involve "[a] comprehensive, > discriminating, and continuing state surveillance," and would > require "state inspection and evaluation of the religious > content of a religious organization," which is "pregnant with > dangers of excessive government direction of church schools > and hence of churches," and with "the danger that pervasive > modern governmental power will ultimately intrude on > religion." But wouldn't continuing state surveillance, > inspection, evaluation, direction, and intrusion be just as > bad for newspapers and universities? > > As to divisive political potential, much has been said > about it elsewhere; I agree with those who say that this > should not be part of the Establishment Clause inquiry for > many reasons, one of which is that it's far from clear which > would lead to more division among religious > lines: making it easy for people to cheaply opt out of public > schools into religious schools, or to fund only public > schools and thus increase have more parents who are > dissatisfied with their children's schools for religious reasons. > > Eugene > > > -----Original Message----- > > From: [EMAIL PROTECTED] > > [mailto:[EMAIL PROTECTED] On Behalf Of > > Newsom Michael > > Sent: Tuesday, April 04, 2006 10:28 AM > > To: Law & Religion issues for Law Academics > > Subject: RE: Excessive entanglement > > > > > > Isn't Lemon v. Kurtzman a good place to begin a meaningful > > inquiry into the contours of "excessive entanglement?" > > Burger identifies several considerations that informed the > > judgment of the Court on this point: "the substantial > > religious character of the[] church-related schools'; the > > need to monitor the financial and programmatic limitations > > and conditions of the Pennsylvania and Rhode Island statutory > > schemes; and "the divisive political potential of these state > > programs." > > > > I am not sure that "excessive entanglement" with private > > universities or newspapers bears any resemblance to > > "excessive entanglement" with religious organizations, > > particularly parochial schools. So the question is not > > whether one is worse than the other, unless one wants to > > consider whether apples are worse than oranges. > _______________________________________________ > 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. > _______________________________________________ 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.
