OK, let me present it from a different perspective: Many
traditionalist Christians have argued that civil rights victories for
the gay rights movement mean losses for traditionalist Christians -- in
particular, loss of free speech and the right to spread their religious
views. Many have responded that this isn't so, or is at least
overstated: That of course Christians can keep their free speech rights
and the rights to spread their religious views, and gays and lesbians
can have the right to sexual autonomy, the right to marry free of
government constraint, and so on.
But I take it that Michael disagrees: His view is that Romer
and Lawrence should indeed lead the Court to uphold restrictions on
antigay speech, which I take it would include antigay religious
teachings. Moreover, I take it that the assertedly compelling
government interest in protecting gays is *much* more jeopardized by
mainstream antigay teachings (even when they are comparatively politely
framed), from groups such as traditionalist Protestants, Catholics,
Muslims, and orthodox Jews, than by Phelps' gang of kooks (which if
anything would lead to some extra sympathy for gay rights, by tying
extremist antigay bigotry to extreme anti-Americanism). So under his
rationale, the Court should uphold general bans on anti-gay-rights
teachings, including religious teachings.
If that's right, then weren't the traditionalist Christian views
who complained about the gay rights movement, and in particular about
the indirect consequences of its validation in cases such as Romer and
Lawrence, quite prescient? If Michael's views are to prevail, then it
really is a question of choosing whose rights we protect -- the sexual
autonomy and equality of gays and lesbians, or the free speech and the
religious speech rights of traditionalist Christians. When the first
group wins, the second loses (again, if Michael's views are to be
accepted).
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Newsom Michael
> Sent: Friday, November 02, 2007 12:41 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory
> against antigay speech
>
> No, not remarkable.
>
> Viewpoint neutrality is a chimera and an illusion, in my
> opinion. I do agree that the Court is not likely to agree,
> but that does not mean that the Court is right, but merely
> that the Court has spoken -- wrongheadedly.
>
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Volokh, Eugene
> Sent: Friday, November 02, 2007 2:56 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: Is First Amendment viewpoint-discriminatory
> against antigay speech
>
>
> Wow, that really is a remarkable First Amendment
> position: The government is constitutionally permitted to
> ban antigay speech (all antigay speech? some antigay speech?
> only antigay speech at funerals?), but I take it
> constitutionally forbidden from banning progay speech,
> anticapitalist speech, anti-Christian speech, and so on.
> Might as well chuck all the Court's pretensions to viewpoint
> neutrality out the window if that sort of exception is
> accepted (though fortunately I can't count a single vote for
> it on today's Court).
>
> Eugene
>
> > -----Original Message-----
> > From: [EMAIL PROTECTED]
> > [mailto:[EMAIL PROTECTED] On Behalf Of Newsom
> > Michael
> > Sent: Friday, November 02, 2007 11:29 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Is First Amendment viewpoint-discriminatory against
> > antigay speech
> >
> > David has it right: a compelling governmental interest in
> protecting a
> > discrete and insular minority -- one that is routinely victimized.
> >
> > -----Original Message-----
> > From: [EMAIL PROTECTED]
> > [mailto:[EMAIL PROTECTED] On Behalf Of David Cruz
> > Sent: Thursday, November 01, 2007 8:12 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: Is First Amendment viewpoint-discriminatory against
> > antigay speech
> >
> > I too found that comment a little cryptic. If Michael meant to be
> > doctrinal rather than just attitudinally predictive, my
> guess would be
> > that he didn't mean that a different First Amendment rule
> would apply,
> > but that those decisions might somehow justify a conclusion that
> > there's a compelling governmental interest present. But it
> wasn't at
> > all clear to me, so perhaps Michael might clarify.
> >
> > David B. Cruz
> > Professor of Law
> > University of Southern California Gould School of Law Los
> Angeles, CA
> > 90089-0071 U.S.A.
> >
> > -----Original Message-----
> > From: [EMAIL PROTECTED]
> > [mailto:[EMAIL PROTECTED] On Behalf Of Volokh,
> > Eugene
> > Sent: Thursday, November 01, 2007 4:43 PM
> > To: Law & Religion issues for Law Academics
> > Subject: Is First Amendment viewpoint-discriminatory
> against antigay
> > speech
> >
> > I'm puzzled -- do Romer and Lawrence really justify not just
> > protection of gays against governmental discrimination, but a
> > different First Amendment rule for antigay speech than for
> > pro-gay-rights speech or a wide range of other speech?
> >
> > Eugene
> >
> > Michael Newsom writes:
> >
> > > That said, I have no idea of what the Court would do with
> > this case,
> > > but my guess is that the Court would overturn the jury
> verdict 5-4,
> > > although Kennedy, on the strength of Romer and Lawrence,
> might vote
> > > with the moderates and the case would come out the other
> > way, 5-4 to
> > > uphold the jury verdict (although the punitive damages might be
> > > reduced, the Court likely to send a signal, I think, in
> the Valdez
> > > case that it is prepared to rein in punitive damages).
> > _______________________________________________
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