I suppose I'm somewhere between Marty and Eugene on this issue. I think Eugene is correct that Widmar and Good News Club largely resolve this issue - at least an appellate court would be justified in concluding that they controlled the question.
The distinction that Marty draws, however, is a critical one. If laws discriminating against religious conduct -- ritual, worship or practice - standing alone will be construed to be laws directed at speech for free speech doctrine purposes because there is some expressive dimension to these activities, then statutory religious accommodations that exempt religious exercise must also be construed to be laws directed at speech and subject to the same standard of review applied to laws that discriminate against religious expression. However, there may be five justices on the Court who would support a version of free speech doctrine that requires reviewing laws that discriminate against religious expression more rigorously than laws that favor religious expression (and in doing so discriminate against non-religious expression.) Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Marty Lederman Sent: Monday, August 15, 2011 8:02 AM To: Law & Religion issues for Law Academics Subject: Re: Widmar v. Vincent redux, though in a traditional public forum? I suppose I should have written "religious worship services standing alone." If I recall correctly, the premise of the CTA2 decision in Bronx Household is that if -- unlike in Widmar -- a state generally treats religious expression and nonreligious expression equally, and imposes a restriction only on religious worship services, not because of the content or viewpoint of those services, but because they are functionally unlike any of the other permitted uses, the Widmar/Good News line of cases does not govern the case. I doubt the SCOTUS will buy it, but that's the theory. On Mon, Aug 15, 2011 at 10:30 AM, Volokh, Eugene <vol...@law.ucla.edu<mailto:vol...@law.ucla.edu>> wrote: 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
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