Isn't the whole point of the EC that the government cannot be permitted to be a "willing speaker" when it comes to God-talk? And isn't this the reason why a per se analysis is more consistent with that purpose than any compelling interest test might be? The EC contains its own compelling interest, doesn't it? And isn't that compelling interest essentially freedom FROM religion? (Why, for the sake of discussion, should X's freedom OF religion trump Y's freedom FROM religion? And isn't it true, therefore, that large claims of freedom OF religion, of Free Exercise, should be viewed with a great deal of suspicion especially given the categorical nature of the EC, of freedom FROM religion, whereas there is no comparable categorical freedom OF religion? Of course my Protestant Empire thesis provides a useful way of assessing both freedom FROM and freedom OF religion claims. I have another Protestant Empire piece coming out shortly which looks at this problem in part through the lens or prism of proselytizing in the public schools and elsewhere.)
Isn't it also true, therefore, that to characterize the objection to the display as a "heckler's veto" begs the question to be decided? If the government cannot be a willing speaker then the "censor" is not the "heckler" but is the EC itself. It is interesting to recall that the pre-Incorporation common school religion cases divided on this point. The state courts that upheld prayer and Bible reading in public schools almost always characterized the objectors as "hecklers." The minority of state courts that struck down or limited these practices never used such terminology in describing those who objected to these religious exercises. Was the pre-Incorporation state court minority right when it struck down or limited Bible reading and prayer in the public schools? Were Engel and Schempp correctly decided? ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Monday, July 23, 2007 5:14 PM To: Law & Religion issues for Law Academics Subject: RE: EC & Compelling Interest Of course, one of the problems with a compelling interest test is no one really knows what interests are extraordinarily important and which are less so. And different folks may have different scales of importance. In the case of a holiday display, one could view this as a case involving a willing speaker (the county govt) and a willing audience (those who wish to enjoy the holiday expression) who are being censored by a heckler's veto under the EC. I think it is important that govt speech be available to those who wish to receive it. Is it "extraordinarily important?" I don't know. I would at least like to see the Ct apply the compelling interest test and explain why this speech/non-censorship interest is not important. Alternatively, the compelling interest in such cases might be the govt's strong interest in diversity and equal regard for religious citizens in a pluralistic public square. If all sorts of secular holidays are celebrated in the public square (gay pride, cinco de mayo, Columbus Day, pork producers day, etc), many people of faith might well feel disrespected and deeply injured by being the only subgroups in the community whose holidays are not celebrated. And what about the compelling interest of school officials to decide which curriculum best meets the needs of students in the public schools trumping EC attacks on ID, music curriculum, and the Pledge of Allegiance? Just some thoughts. I don't think these cases are as easy as Eugene seems to think they are, because what may not seem important to some may seem very important to others. And the fact that the Ct doesn't even play the game suggests that maybe the reason is that there is no game to be played because the EC applies as a categorical rule without a balancing test. Rick Duncan "Volokh, Eugene" <[EMAIL PROTECTED]> wrote: Rick: You might well be right, but it's hard to tell without some cases that test our sense of this, by coming out differently under strict scrutiny than under per se invalidation. It's hard to see a compelling interest behind government holiday displays -- one can surely argue that endorsement shouldn't be seen as implicating the Establishment Clause, but it's harder to say that it does implicate it but that it's just extraordinarily important to allow it. Eugene ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Sunday, July 22, 2007 4:45 PM To: Law & Religion issues for Law Academics Subject: RE: EC & Compelling Interest When the Ct strikes down a law under the EC, it usually declares the law unconstitutional w/out any type of "scrutiny." Why doesn't the Ct at least go through the motions of applying the compelling interest test? Is the EC an absolute, categorical rule prohibiting laws that establish religion? Take the Nativity display in Allegheny County--should the county govt argue that it has a compelling interest in recognizing that many persons are willing recipients of the county's speech recognizing that some of its citizens are celebrating a religious holiday on Dec 25? Why should the Pl, whose liberty is not in any way restricted by a passive holiday display, have the right to censor a display that means a great deal to others in the community who wish to view the display? Why not at least analyze the compelling interest test in cases like these? I have always assumed that the EC here is a structural limitation on the power of govt, one that denies govt the power to "endorse" religion even if it has good reasons to put up the display. Am I wrong? Rick Duncan "Volokh, Eugene" wrote: Rick asks an excellent question; the doctrinal answer seems to be that some behavior -- such as coercion of religious practice -- is categorically unconstitutional, with no strict scrutiny exception, but the Court often talks about rights as being absolute and then turns around and sets up some strict scrutiny exception (even if it concludes that exception is inapplicable). Compare, e.g., Everson's talk of no preference among religions with Larson v. Valente's strict scrutiny for denominational discrimination (under the Establishment Clause, in fact). The tough question is to come up with a concrete example of where some compelling interest would indeed be in play. Rick, what examples did you have in mind? Eugene ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Sunday, July 22, 2007 12:07 PM To: Law & Religion issues for Law Academics Subject: EC & Compelling Interest A question for this august body of learned friends: When a state violates the EC, is this absolutely unconstitutional or may the state attempt to show a compelling interest to justify an establishment? Does any SCt case clearly focus on this issue? Are there good law review articles addrsssing it? Does it matter what kind of EC violation the state has committed? Cheers, Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience) "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id. ________________________________ Shape Yahoo! in your own image. Join our Network Research Panel today! o_panel_invite.asp?a=7> _______________________________________________ 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. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience) "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id. ________________________________ Got a little couch potato? Check out fun summer activities for kids. _on_mail&p=summer+activities+for+kids&cs=bz> _______________________________________________ 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. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence." --J. Budziszewski (The Revenge of Conscience) "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id. ________________________________ Need a vacation? Get great deals to amazing places <http://us.rd.yahoo.com/evt=48256/*http:/travel.yahoo.com/;_ylc=X3oDMTFh N2hucjlpBF9TAzk3NDA3NTg5BHBvcwM1BHNlYwNncm91cHMEc2xrA2VtYWlsLW5jbQ--> on Yahoo! Travel.
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