Alan: What if a town enacted an ordinance that prohibited the
display of signs or banners that held those who get abortions up to
contempt or ridicule (or expressed the message that they deserved to be
punished by God) within 1000 feet of an abortion clinic? Would that be
treated the same way as funerals? Is the difference that protecting the
privacy and dignity of mourners a more compelling interest than
protecting the privacy and dignity of those who are about to get a
difficult medical procedure? Or is the difference that we think the
view that women who get abortions are acting immorally is plausible --
even if we disagree with it, and even if we think it's rude to express
it around them -- while the view that people who mourn soldiers should
instead recognize that the soldiers' deaths were God's righteous justice
is implausible?
Eugene
________________________________
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Brownstein,
Alan
Sent: Friday, November 02, 2007 11:38 PM
To: Law & Religion issues for Law Academics
Subject: RE: Of Phelps and Persecution
Picking up on Marci's comment, suppose a town enacted an
ordinance that prohibited the display of signs or banners that held the
decedent up to contempt or ridicule (or expressed the message that the
decedent deserved to die or was unworthy to be mourned) within 1000 feet
of a burial service. Something like the law at issue in Boos v. Barry,
but with the goal of protecting the privacy and dignity of the service
and mourners. It is a content discriminatory law and should be subjected
to strict scrutiny. Does the state have a compelling interest in
protecting grieving family members and friends so that they can bury
their dead in peace and without offensive disturbances?
Alan Brownstein
________________________________
From: [EMAIL PROTECTED] on behalf of
[EMAIL PROTECTED]
Sent: Fri 11/2/2007 3:24 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Of Phelps and Persecution
Chris Lund has put the cart before the horse here. Measuring
the neutrality of the law according to whether the organizations' assets
are exhausted is backward. Strong impact of a neutral law does not
prove by itself that it is not neutral -- it just may prove that the
religious entity acted in ways that severely harm others. It is simply
a fact that religious organizations -- just like businesses -- may cause
such harm that losing all of their assets even falls short of what they
should owe society for what they have done. Thus, the impact of the law
may well prove a lot more about the wrongdoing within the organization
than the law's neutrality. It is not unconstitutional for a religious
organization to be put out of business by the operation of neutral,
generally applicable laws when the behavior has been as execrable as the
behavior is here.
Now, if the tort law ONLY impacted religious organizations and
no secular organizations (like the law banning sacrifice in Lukumi),
there might be some argument about neutrality, but I have yet to see the
tort law that is directed solely at or works only against religious
organizations.
For what it's worth, the speech issue in my view is limited
solely to place analysis. Those arguing that there is something
especially problematic in the delivery of this personal message against
a family at this location are very persuasive. If this group wants to
make these points on the apron in front of the Supreme Court or other
public place removed from the family's observance, they deserve
protection, despite the ugliness of their message. Doing it in physical
proximity of a mourning family observing their religious obligations to
their dead is a very different matter. The First Amendment does not
guarantee anyone the optimal location for speech, even when the speech
is otherwise highly protected.
Marci
Marci A. Hamilton
Visiting Professor of Public Affairs
Kathleen and Martin Crane Senior Research Fellow
Program in Law and Public Affairs
Woodrow Wilson School
Princeton University
The Hare Krishnas and Unification Churches faced
similarly devastating verdicts because of IIED and invasion-of-privacy
claims brought by private individuals who wanted their destruction, and
that reflected how neutral and generally applicable tort rules could
combine with jury discretion to be devastingly non-neutral. If I'm
remembering Doug Laycock's Remnants piece right, all of Krishna's land
holdings in the United States were put into receivership to secure just
one of the judgments.
________________________________
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