I agree entirely that it matters what grounds the state gives,
and grounds 1 and 2 might well have been adequate - but as Marty points out,
the state's grounds were not either 1 or 2, but simply that the group was
engaging in religious worship.
But as to whether Widmar protects religious worship services as
such seemed to be answered "yes" by Widmar itself. The unresolved question, as
I understand it, is whether in a nonpublic forum (or a limited public forum),
where content discrimination is allowed but viewpoint discrimination as not, a
"religious worship" vs. "nonworship religious speech" line could be drawn. But
given the Widmar precedent for a designated public forum, why wouldn't the
exclusion of religious worship be a fortiori unconstitutional in a traditional
public forum?
Eugene
On Mon, Aug 15, 2011 at 8:07 AM, Marty Lederman
<lederman.ma...@gmail.com<mailto:lederman.ma...@gmail.com>> wrote:
I can imagine at least two grounds on which the use of the park for the baptism
could be prohibited without raising serious legal question:
1. I suspect that the river or stream or pond in the park is not generally
open to the public for immersion or swimming -- and if so, prohibiting the
baptism would be application of a generally applicable conduct restriction that
doesn't single out speech.
2. Moreover, far from using a "traditional public forum" -- e.g., a speaker's
corner, offering expression to the general public -- the group here wished to
engage in a "private" event that would not be "open to the public." Unless the
State generally allows use of the park for "not open to the public" events --
which would presumably create a designated or limited, not traditional, public
forum -- that might be another ground for denial here.
The problem here is that the State (apparently) did not invoke either of these
reasons, but instead cited the state constitutional prohibition on the
expenditure of funds for "any religious worship."
Whether the Widmar/Good News line of cases does or should extend protection
beyond religious instruction or discussion to religious worship services, as
such, is actually an unresolved question, as Souter's Good News dissent
suggests (although I don't think it's difficult to predict how the current
Court would come out). A divided Second Circuit panel recently held that a
school could exclude religious worship services from a school on Sundays -- at
least where that was the predominant use of the school on those days, virtually
turning it into a church one day a week: http://tinyurl.com/436mas4.
An en banc petition has been filed in that case. If the full court of appeals
doesn't reverse, I think the SCOTUS will do so on free speech grounds --
although in my view, FWIW, it should be treated more as a Lukumi free exercise
case than a Widmar/Good News free speech case.
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