Wow! Allowing local groups with longstanding ties to the community preferential access to non-public forums (or denying access or providing less favorable access to outside groups or local groups without longstanding ties to the community.) What a great way to mask viewpoint discrimination and not only to promote and preserve religious hierarchy but also to entrench the current political power structure of the community at the same time.
I hope the communities that adopt this policy are up-front about it in the literature describing their areas. First they should list all of the public property to which this policy of preferential access should apply -- which, of course, will be most of the public property in the town other than streets and parks: interior sidewalks, the lobby of government office buildings, bus terminals, train stations and airports, government workplace charity drives etc. Next they should list all of the religious, ethnic, and political groups they consider to be either outsiders or lacking longstanding ties to the community. If they are going to treat new residents or visitors as second class citizens they ought to at least let them know ahead of time. Alan ________________________________ From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] on behalf of Rick Duncan [nebraskalawp...@yahoo.com] Sent: Thursday, December 12, 2013 8:53 AM To: Douglas Laycock; 'Law & Religion issues for Law Academics' Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature Doug is absolutely correct here. The Govt wins if this is government speech and the Ten C display does not violate the EC, either because a majority decides the endorsement test does not apply or, if it does apply, the display does not amount to an endorsement of religion (perhaps a majority may conclude that the purpose and effect do not endorse religion, but merely recognize the historical significance of the Ten Commandments in the local community). If this is some kind of forum for private speech--even if it is a non-public forum--Pl wins if this amounts to viewpoint discrimination. But if it is a non-public forum, and the restriction amounts to content or speaker but not viewpoint discrimination, the Govt will win if the content or speaker exclusion is reasonable. So a policy that allows local groups with longstanding ties to the community preferential access, if used to exclude an outside group with minimal ties to the community, may be permissible in a non-public forum. I think this is correct. No? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2361504> "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) ________________________________ From: Douglas Laycock <dlayc...@virginia.edu> To: 'Rick Duncan' <nebraskalawp...@yahoo.com>; 'Law & Religion issues for Law Academics' <religionlaw@lists.ucla.edu> Sent: Thursday, December 12, 2013 10:05 AM Subject: RE: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature That may well be with respect to passive displays; probably not with respect to live speakers. But I inadvertently misled by talking about endorsement. The question under discussion was whether allowing one group and only one group to erect a display on government property makes it government speech. The answer to that is still yes. The nativity scene put up by the preferred group becomes government speech, even if the endorsement test is overruled and that speech becomes permissible. If the nativity scene were private speech, there would be obvious viewpoint discrimination and a Speech Clause violation. It becomes permissible only if it is government speech -- and then only if government is permitted to endorse the truth claims of a particular faith. These are two different issues. 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 Rick Duncan Sent: Wednesday, December 11, 2013 11:03 AM To: Law & Religion issues for Law Academics Subject: Re: Satanists want statue beside Ten Commandments monument at Oklahoma Legislature I think Doug is correct that preferential access probably triggers Allegheny and the endorsement test. But Justice O'Connor is long gone, and Allegheny is ripe for re-consideration. I suspect the endorsement test would not survive re-consideration, given the current lineup on the Court. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 My recent article, Just Another Brick in the Wall: The Establishment Clause as a Heckler's Veto, is available at SSRN<http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2361504> "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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