How fragile is the public forum protections of cases like Widmar, Lamb's
Chapel, and Good News? Let me re-phrase one of Eugene's hypos:
"A [public library with unused meeting rooms] is attempting to create a
designated public forum for all [community groups] that decline to discriminate
in officers and members
based on race, religion, sex, sexual orientation, [or any other reason], but
not those
who exercise their right to expressive association by so discriminating,
even when their expressive purpose would be better served by
discriminating. If you want to associate in a way that discriminates,
do it with your own money and your own property. Why wouldn't this be
equally constitutional?"
If Eugene's implication is correct, all the govt has to do to exclude church's,
religious ministries, and even secular expressive groups like Planned
Parenthood and the NAACP from public fora is to adopt an "all comers" rule as
part of its designated forum policy and then exclude all groups that insist on
keeping their right of expressive association (their right to exclude members
and leaders who do not share the groups' expressive purposes).
Clever drafting of the forum policy in Lamb's Chapel, Good News, and Widmar
would have reversed the results in those cases, and led to the Court's
permitting govt to deny the plaintiffs in those cases access to the public
fora. No?
This case is not about equal funding for religious K-12 schools, as Marci
suggests.
It is about whether a landmark body of law, protecting the right of free speech
in public fora, will be eviscerated by a newly-created codicil allowing govt to
restrict access to public fora by adopting all comers policies that strike at
the heart of freedom of expressive association.
In a society committed to freedom of speech, expressive groups should not be
forced to choose between their right to access a public forum and their right
to expressive association.
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"And against the constitution I have never raised a storm,It's the scoundrels
who've corrupted it that I want to reform" --Dick Gaughan (from the song,
Thomas Muir of Huntershill)
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