I think Doug is clearly correct that the gay pride plaintiffs do not have a viable constitutional claim. I think a better hypo that Rick might consider for his class is this: Suppose the Court moves in the direction of rejecting an endorsement test and adopts some kind of coercion test. A City erects a stand alone nativity scene in front of city hall. Members of other faith communities in town ask to have displays of comparable size expressing their religious beliefs placed in comparable locations on public land. The City denies their requests. Do the members of these faith communities have a viable constitutional claim? What about the atheist who wants the City to set up a comparable display denying the existence of G-d? What do you think, Rick?
Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Wednesday, August 01, 2007 11:35 AM To: Law & Religion issues for Law Academics Subject: RE: A Hypo I Am Using in Class Note also that Pico had no majority opinion even supporting the proposition that libraries may not remove books based on viewpoint. Four Justices took this view; four took the opposite view; the swing vote, Justice White, merely concluded that the Court should avoid making the decision on whether such viewpoint-discriminatory removals are permitted by waiting until there were more factual findings, which might make such a decision unnecessary. Eugene ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Wednesday, August 01, 2007 11:15 AM To: religionlaw@lists.ucla.edu Subject: Re: A Hypo I Am Using in Class The gay pride folks do not have a claim. The Free Speech Clause creates no right to force someone else to say something -- not even if that someone is the government. Pico was a very narrow holding. It involved a library, and surely not every book in the library is government speech or the government's own message. It did not involve purchase of books for the library. The opinions appear to be confined to removing books from the library because of hostility to their content, which to some observers looks more like censorship of existing private speech than failure to speak in the government's own voice. And of course who knows whether the current Court would accept Pico as a preceent. No one has a right to force someone else, even the government, Quoting Rick Duncan <[EMAIL PROTECTED]>: > Here is a hypo I am asking the students in my 1A class to think about today: > > Imagine a city with two displays in the public square one December: > a nativity scene (without plastic elves or talking wishing wells) in > one public park, and a "gay pride--stop homophobia display" in a > second public park. Both displays provoke complaints--the nativity > scene by an atheist such as Mr. Newdow who, when he sees the nativity > display, is offended by the religious nature of the display (and > feels like an outsider, "not a full member of the political > community"); and the gay pride display by an Orthodox Jew whose > religious conscience is offended when he sees that display and also > feels like an unwelcome outsider and not a respected member of the > political community. > > The city, wishing to avoid controversy and to offend no one, removes > both displays. > > Supporters of the gay pride display sue claiming that they are a > willing audience for the message of gay pride and thus, under Pico > and the Free Speech Clause, have a right to receive the message > expressed by the gay pride display without censorship imposed by the > city to satisfy the demands of "hecklers" and others who don't like > the message. > > Do the Pls have a good claim? > > 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. > > > > --------------------------------- > Park yourself in front of a world of choices in alternative vehicles. > Visit the Yahoo! Auto Green Center. Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713
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