"Brownstein, Alan" <[EMAIL PROTECTED]> wrote:
I think that Rick is right that the Citys action would not be
unconstitutional under a true coercion test and that is why the adoption of a
coercion test by the court is so problematic. It would eliminate any
constitutional commitment to religious equality in government expression and
permit the resources of the state to be used to promote favored faiths and
denigrate others.
Of course, averting ones eyes and taking a few steps out of the way in no
way shields the members of minority faiths from the message the state is
communicating to them and about them with its decision. They are told that
their religious beliefs are not worthy of state recognition while the beliefs
of other community members are worthy of such respect.
Of course, this is also true of persons whose religious sensibilities are
offended by the "gay pride--stop homophobia" governmental display in the park.
They are being told that their religious (and/or deeply held secular) beliefs
about homosexuality are not worthy of state recognition (indeed, the state is
saying their views are a disease that must be stopped) while the beliefs of
their ideological and religious opponents are worthy of respect.
Yet, opponents of the gay pride display (or of a secular pledge of
allegiance) are told by the Ct that their rights are respected so long as they
are not actually coerced into affirming the objectionable message. I like a
true coercion test. The interior decorating of the public square should be
decided in the political process, not by an unelected Court sitting in a
federal enclave.
Rick Duncan
v\:* {behavior:url(#default#VML);} o\:* {behavior:url(#default#VML);}
w\:* {behavior:url(#default#VML);} .shape {behavior:url(#default#VML);}
I think that Rick is right that the Citys action would not be
unconstitutional under a true coercion test and that is why the adoption of a
coercion test by the court is so problematic. It would eliminate any
constitutional commitment to religious equality in government expression and
permit the resources of the state to be used to promote favored faiths and
denigrate others.
Of course, averting ones eyes and taking a few steps out of the way in no
way shields the members of minority faiths from the message the state is
communicating to them and about them with its decision. They are told that
their religious beliefs are not worthy of state recognition while the beliefs
of other community members are worthy of such respect.
Alan Brownstein
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Wednesday, August 01, 2007 1:29 PM
To: Law & Religion issues for Law Academics
Subject: RE: A Hypo I Am Using in Class
Alan, I think if we apply a real coercion test under the EC, then critics
of the Nativity display lose because they may avert their eye and are not
coerced into particpating in any kind of religious expression or celebration.
If it amounts to coercion for the govt to decline to put up the dissenter's
message next to the govt's message, then the govt would have to display a KKK
banner next to its Martin Luther King display and an "America is evil" banner
next to its fourth of July banner. No?
No passive governmental display is coercive, and thus a coercion test does
not require some kind of "equal display" requirement for the public square. If
you disagree with the banner, you can avert your eye or walk a few steps out of
your way to avoid it. That is clearly true under the Fr Sp Cl, and it should be
no less true under the EC.
Rick Duncan
"Brownstein, Alan" <[EMAIL PROTECTED]> wrote:
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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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.
---------------------------------
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To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
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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.
---------------------------------
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