Alan's and my last posts crossed in the mail, so to speak. I'll just let this sit for a while to see whether others have comments. Mark S. Scarberry Pepperdine University School of Law
________________________________ From: Scarberry, Mark Sent: Tuesday, March 31, 2009 3:46 PM To: 'Law & Religion issues for Law Academics' Subject: RE: Government Religious Displays and Substantive Neutrality I thought Alan's post was invoking the free speech clause by saying that, if the govt reserved a portion of a park (a traditional public forum) for expression of one religious view, he "presume[d] that would be unconstitutional." And then he analogized to a case in which govt required that private expression to be by way of a permanent structure (a monument) and then to a case in which govt accepted a gift of such a permanent structure. I thought the point was that if the first case violated the Constitution, then the second and third must also violate it. My point is that the same move can be made with regard to secular speech; the first case violates the Free Speech Clause, and thus, if Alan's argument by analogy holds, so must the second and third. But the third clearly does not (with regard, e.g., to war memorials). Thus the analogy does not seem to hold, and any conclusion reached by way of it with regard to religious expression should be questioned. If Alan is saying that his analogy is a good one for Establishment Clause cases even though it doesn't work for Free Speech cases, then I have to ask whether the analogy advances the analysis. Put another way, if Alan meant that the first case (reservation of a part of a park for a particular religious group's expression) was an Establishment Clause violation rather than a Free Speech Clause violation (even though it clearly is a Free Speech violation), then he could respond that his argument by analogy works for Establishment Clause cases even though it does not work for Free Speech Clause cases. But then the analogy doesn't do any work; we only accept it because we already have concluded that the monument with the religious message violates the Establishment Clause. At least that's how it looks to me. Mark S. Scarberry Pepperdine University School of Law ________________________________ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Tuesday, March 31, 2009 2:59 PM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality I think Mark's post is helpful in returning to the original source of this thread, but my post was not intended to suggest free speech analogies. As Mark notes, there may be interesting free speech questions that are implicated by my examples, but my focus is one the Establishment Clause not the Free Speech Clause. Just as the Summum case was litigated on free speech grounds and did not directly address Establishment Clause issues, we can imagine a case that is litigated on Establishment Clause grounds and ignores the free speech issue that may be present. When I wrote that " From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Scarberry, Mark Sent: Tuesday, March 31, 2009 11:27 AM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality Given Doug's criticism of my earlier post (which undoubtedly means I did not give the matter enough thought before posting and need to clarify or revise my post), I'm reluctant to reengage so soon, but it is worth noting that parts of Alan's analysis would apply even with respect to nonreligious speech (e.g., Rick's examples of secular messages that are offensive to some). If the govt decided to allow one group with a focus on a particular subject (e.g., global warming) and one viewpoint (law must severely limit carbon dioxide emissions) exclusive use of a portion of a park for expressive purposes--while still maintaining its character as a part of a public park--I think there would be a free speech violation, with speech in a traditional public forum being regulated on the basis of content and even viewpoint. If Alan's analogy holds, then allowing adoption of a secular message on a govt monument would also violate the First Am. I suppose that would make war memorials that honor the fallen violative of the First Am (at least absent an equal opportunity for placement of dissenting monuments). I presume that means something does not work with the analogy. Mark S. Scarberry Pepperdine University School of Law ________________________________ From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas Laycock Sent: Tuesday, March 31, 2009 10:14 AM To: Law & Religion issues for Law Academics Subject: RE: Government Religious Displays and Substantive Neutrality I fully accept Alan's analysis. Very helpful. Quoting "Brownstein, Alan" <aebrownst...@ucdavis.edu>: > While I would probably come out in the same place as Doug does on > many of these issues, I might be more explicit than he is in arguing > that substantive neutrality refers to both liberty and equality > values. Liberty standing alone can't handle the job. If government > gives modest financial incentives to one faith and not another (three > pence in aid), the impact on religious liberty and the incentives > such spending discrimination creates will be minimal or nonexistent. > Even minor regulatory discrimination is unlikely to persuade many > individuals to change their religious beliefs and practices. But > surely a one dollar tax credit to Christians is unconstitutional, > notwithstanding its minimalist impact on religious liberty. > > It is not that hard to conceptualize a preferentialist religious > display in a public park in the same way. If the government decided > that one quarter of an acre of a one hundred acre park is reserved > solely for the expressive use of a particular religious faith, I > presume that would be unconstitutional. If the government reserves > one quarter acre for the expressive use of a particular religious > faith, but insists that the message must be communicated with a > permanent structure, I would think that is also unconstitutional. How > different is it if the government states that it will accept the > permanent structure as a gift and place it on that same quarter acre > plot? In all three cases, government property is being used on a > discriminatory basis to communicate the message of one religious > community and not that of others. The line between giving a > religious group funds to communicate the government's religious > message that coincides with the group's own beliefs, and giving a > religious group public land to express a religious message that > coincides with the government's religious commitments is thin. > > Alan Brownstein > > From: religionlaw-boun...@lists.ucla.edu > [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Douglas > Laycock > Sent: Monday, March 30, 2009 7:53 PM > To: religionlaw@lists.ucla.edu > Subject: Fwd: Government Religious Displays and Substantive Neutrality > > > A friend on the list posed the following question to me. Since he > didn't send the query to the list, I have deleted his name. If he > thinks he's got me after my answer, he can take credit on his own > initiative.. > >> Might you be willing to offer your reaction to the following line of >> argument: > >> (1) Suppose that a government erects a nativity scene, a Ten >> Commandments display, or a cross. > >> (2) It is pretty clear that this is *formally* non-neutral. > >> (3) The display, however, is *substantively* neutral -- in the sense >> that the display does not affect anyone's religious choices. > >> (4) Since the Establishment Clause is the constitutional mechanism >> for achieving substantive government neutrality towards religion, >> the display does not violate the Establishment Clause -- despite its >> formal non-neutrality.. > > Actually, I don't think that either 2) or 3) is clear. Formal > neutrality becomes incoherent in the case of government speech. > Formal neutrality is defined as the absence of religious categories. > But a rule that government can take no positions when it discusses > religion -- that it must be either silent or scrupulously neutral in > what it says -- makes a very special category of religion. On every > other topic, government endorses or opposes as it chooses. So while > endorsing religion certainly seems like a departure from neutrality, > it doesn't easily fit into the definition of formal neutrality. > > And if you try to put religion into one of the existing categories, > which one? The category of all the things government endorses? All > the things it opposes or denounces? All the things it doesn't care > about and expresses no opinion on? It's really not clear what > formally neutral would mean here.. > > I do think government endorsements depart from substantive > neutrality, because they attempt to persuade or encourage people to > adopt the government's religious views. But as my questioner notes, > these government efforts are highly unlikely to be very effective. > Sometimes I have defined substantive neutrality as requiring neutral > incentives; sometimes I have defined it as government neither > encouraging or discouraging religious belief or practice. I had not > focused on the difference between these two formulations until I got > this question, but government speech encouraging religion is a case > where the encouragement is blatant but the effects on incentives may > be quite small. > > I don't think the effect on incentives is zero. Government is a > large and pervasive presence, and at the margin, its religious speech > surely matters. The kinds of government speech we are talking about > is not going to convert Jews or Muslims to Christianity. But > government religious speech necessarily comes in some particular > form. It models forms of prayer, forms of observing Christmas, one > translation of the Ten Commandments, etc. For the > not-very-committed, these government models may well have influence. > We are engaged in a cultural battle over the proper celebration of > Christmas -- is it mostly about the Incarnation of God in human form, > or mostly about retail sales, acquiring stuff, and a lot of parties? > The Supreme Court says government can come down on the > sales-stuff-parties side, or it can straddle that divide, but it > can't come down just on the Incarnation side. Whatever the Supreme > Court said, government could not celebrate Christmas (beyond closing > its offices and letting the private sector conduct the observances) > without choosing a position in that battle. And the cumulative > effect of thousands of government Christmas displays may push the > battle over Christmas one direction or the other. > > Having said all that, I don't think the incentive effects are the > principal reason for objecting to government religious displays. The > sense of gratuitous affront to religious minorities does much of the > work here; the incentives to religions to fight for control of the > government if government is going to be taking positions on religion > does much of the work. Substantive neutrality was always an attempt > to reconcile multiple intuitions about the Religion Clauses -- > neutrality, liberty, separation, voluntaryism -- and I never claimed > that substantive neutrality alone could do all the work without > recourse to the underlying principles it was trying to reconcile. > > I also freely admit -- admitted in print years ago -- that government > religious displays are the thing in its least burdensome form. If I > had to give up one provision of the Bill of Rights, this would be the > one I would choose. I don't think the harms caused by these displays > are trivial, either to the dissenters or to the believers in the > faith that is so often misused or reduced to a least common > denominator. But I do agree that the harms here are less than the > harms of coercing people to violate their conscience or suppress > their speech. > > Finally, I understand that silence may not be perfectly neutral > either, but it is closer to neutral than government taking positions. > And I do not think that government silence with respect to religous > displays would lead to a naked public square. I think the private > sector would fill the gap with alacrity. What would be lost is not > religious speech, but government endorsement of religious faith. And > I continue to think that both the majority and the minority are > better off without it. > > > > > > 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 > 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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