Haven’t read the opinion, but what Chris describes seems clearly right.
Preferential access is a form of endorsement, whether permanent or temporary.
These are the facts of Allegheny (one private actor gets to put up a Christmas
display in a government building), with the reindeer and snowmen to save it
under Lynch. Of course the three-plastic-reindeer rule is dubious. But treating
this as government speech doesn’t seem dubious at all.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund
Sent: Monday, December 09, 2013 10:43 AM
To: 'Law & Religion issues for Law Academics'
Subject: RE: Satanists want statue beside Ten Commandments monument at Oklahoma
Legislature
The result and logic of Summum make sense to me, but I’ve been a little
bothered by how far it’s gone.
For example... earlier this year, the 6th Circuit decided Freedom from Religion
Foundation v. City of Warren. The City of Warren had a Christmas display in
the atrium of their city building—a crèche, a tree, reindeer and snowmen, a
sign saying “Winter Welcome”—put up by the Warren Rotary Club. FFRF wanted to
put up their own display, a billboard saying that religion was nothing but myth
and superstition. FFRF, predictably, was denied the right to put up that
display, and sued. (For the sake of disclosure, I should add that I wrote an
amicus brief on FFRF’s side for the ACLU of Michigan.)
Anyway, throughout the litigation, the City said that the crèche was not their
crèche, but that of the Warren Rotary Club. It was not governmental speech,
they said, but private speech. The City defended FFRF’s exclusion by saying
that their reasons were reasonable and viewpoint-neutral. This was their clear
and consistent position, at trial and on appeal. Their brief to the 6th
Circuit, for example, said things like, “This crèche is accompanied by a sign
that makes clear that it is 'sponsored by the Warren Rotary Club' and not
intended to advocate Warren’s viewpoint” (appellee’s brief at 16).
So everyone was thoroughly surprised when they got the appellate opinion,
http://www.ca6.uscourts.gov/opinions.pdf/13a0049p-06.pdf, which completely
re-characterized the case. This was government speech, the 6th Circuit said,
despite the City’s own protestations. And evaluated under Lynch/Allegheny
County, it was constitutional.
I’m not even disagreeing with this result. We should have briefed the
government speech / Establishment Clause issues better, rather than focusing on
the private speech / Free Speech and Free Exercise issues. But we treated this
as private speech, because the City had conceptualized it that way the whole
time—including the original letter that had denied FFRF’s request. Litigators
beware.
Best,
Chris
___________________________
Christopher C. Lund
Associate Professor of Law
Wayne State University Law School
471 West Palmer St.
Detroit, MI 48202
l...@wayne.edu <mailto:l...@wayne.edu>
(313) 577-4046 (phone)
(313) 577-9016 (fax)
Website—http://law.wayne.edu/profile/christopher.lund/
Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
_____
From: "Len" <campquest...@comcast.net <mailto:campquest...@comcast.net> >
To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu
<mailto:religionlaw@lists.ucla.edu> >
Sent: Monday, December 9, 2013 5:31:33 AM
Subject: Re: Satanists want statue beside Ten Commandments monument at
Oklahoma Legislature
Isn't there a significant difference between placing a religious monument in a
public park vs placing a religious monument in a State capitol building?
_____
From: "Steven Jamar" <stevenja...@gmail.com <mailto:stevenja...@gmail.com> >
To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu
<mailto:religionlaw@lists.ucla.edu> >
Cc: religionlaw@lists.ucla.edu <mailto:religionlaw@lists.ucla.edu>
Sent: Sunday, December 8, 2013 9:46:54 PM
Subject: Re: Satanists want statue beside Ten Commandments monument at
Oklahoma Legislature
Sunnum handles this, no?
Sent from Steve's iPhone
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