But "the inevitable discretion in deciding which programs are plausible enough to get funded" isn't only a practical or political problem, it is a problem of principle. The principle that make Rosenberger plausible and that underlies the principle of a forum is that the state abdicates any responsibility for, or interest in, the expressive activities that occur in the forum. That's why eveyone can get access to the forum on neutral terms and why it is reasonable to conclude that the state is not endorsing any of the messages expressed in the forum. Once the state's involvement is predicated on furthering state goals, (and that is the kind of program Marty has been describing), it's not a forum anymore. It is, in principle, a state funding program and subject to all of the reasons why the direct funding of religion is problematic. I think prison chaplains are fundamentally distinguishable because, from a religious liberty perspective, they do not exist to further the state's interests (although they may do so incidentally). They are there to make the exercise of religion possible for prisoners in an environment where government control would otherwise make religious practice impossible. In that sense, I would analogize prison chaplains to traditional public forums (streets and parks). Speech needs public places to occur, and the fact that the government owns many of those places can't be the basis fordenying speech rights in public locations. In both cases, the government isn't using its resources to achieve government goals, it is relinquishing control of its resources to avoid making it impossible for private persons to exercise their rights -- however they want to and, for the most part, regardless of the consequences. Alan Brownstein
________________________________ From: [EMAIL PROTECTED] on behalf of Douglas Laycock Sent: Sat 5/6/2006 12:28 PM To: Law & Religion issues for Law Academics Subject: RE: Use of Religion to Achieve Secular Ends These are serious objections, and they may well be insuperable politically. But I'm not sure they are insuperable in principle. These are preliminary thoughts; I have not tried to work through all the practical difficulties in any systematic way. In the early versions of these programs, they were run by volunteers with outside funding. That avoids the direct funding question, and it avoids the state urging people to become more religious. It could be assimilated to forum models. It is somewhat troubling that only one faith group so far seems much interested in sponsoring such programs. But I am reluctant to say that that group can't speak and try to help because other groups are less forthcoming. We could expand the forum with government funding -- the government could offer to pay for any programatically plausible private rehab effort, from any faith or secular perspective, with careful safeguards to avoid coercing any prisoner into a religious program. (That may in fact be impossible if there are not secular alternatives adequate to meet all demand. No matter what the food or conditions, and no matter what the prison officials say, prisoners may figure that participation in a rehab program will be rewarded.) The model here would be Rosenberger, a publicly funded forum, where the Court also permitted direct funding of the teaching of religion. The real problems in my view are not with direct funding, but with the inevitable discretion in deciding which programs are plausible enough to get funded. The restrictions on direct funding may be necessarily relaxed in the prison environment, for the same reason we permit prison chaplains. There can be no religious exercise of any kind in prison without substantial cooperation by government. If private funding produces only on religious perspective, and government funding produces a variety of religious and secular perspectives, government funding may be better than private funding for religious liberty in this context. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax)
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