1. I assume, Eugene, that you meant to write
"Following Locke v. Davey, is it unconstitutional for
the government to say that 'religious activity is specifically
prohibited'?"
If the answer to that question is "yes," I
don't think it's because of the Widmar/Lamb's Chapel
line of cases. The immersion in water is, of course, expressive -- in the
sense that most conduct, and virtually all public religious ritual, is
--but it's hardly the sort of speech as was involved in those cases.
More importantly, the state in this case obviously hasn't created any sort of
public forum in the public river. Thus, if it's unconstitutional, it's on
Free Exercise grounds, per Lukumi. And that would depend, I
suppose, on whether religious immersion is being singled out, or treated
disfavorably, in any way. Are persons allowed to wade or swim in the river
for nonreligious reasons? (If religion is being singled out for
disfavored treatment, I can't imagine that that's ok under Locke v.
Davey. This is an "access to public lands" rather than a funding,
case; there's no public imprimatur if baptisms are allowed on the same terms and
conditions as other uses of the river; and it's hard to imagine any
legitimate reason -- or any analogy to Locke's reliance on the
historical tradition of government refusing to fund religious activities so as
to avoid endorsement and involvement -- for singling out baptisms for disfavored
treatment.)
2.Whether it would be a substantial burden
under a state RFRAwould depend, I suppose, on the availability of
alternative locales. But I wouldn't be so sure the government wouldn't
prevail on "compelling interest" grounds. The fact that many other folks
would be in thewater, too-- also at risk of drowning -- is hardly a
ground for an exemption to a "no wading/swimming" rule that otherwise is
uniformly applied to a particular river because (according to the Park Manager)
"there had been four drownings three years earlier."
- Original Message -
From: "Volokh, Eugene" [EMAIL PROTECTED]
To: [EMAIL PROTECTED]
Sent: Monday, May 24, 2004 7:07 PM
Subject: Baptisms in rivers located in public
parks?
Seehttp://www.fredericksburg.com/News/FLS/2004/052004/05242004/1374047,discussing a public baptism. Here's the explanation
for why the peopleinvolved thought the public nature of the baptism was
important:[begin quote] For Kris Jones, who describes herself
as a quiet person, it was a boldact of faith."For me, it's very hard
to do something like that," said Jones, whosehusband, Todd, also was
baptized. "I'm kind of quiet--anonconfrontational person."For me, to
do something like that in public was a big step."But it was that public
declaration that Pastor Todd Pyle felt wasimportant."Baptism,
originally, was a public display of what took placeinside--that we're not
ashamed of being a Christian," Pyle said.He finds it troublesome that
baptisms have moved inside churches andaway from view."Christianity
is isolated indoors so much that people are confused aboutwhat it is, so we
just wanted to bring it outdoors," he said aftercoming back to the
shore.[end quote] Here's the argument that the government is using
to restrict it.[begin quote]As he was explaining that early
Christians knew baptism and a publicprofession of faith often assured
persecution, Park Manager BrianRobinson walked up and quietly told Pyle he
needed to speak to him."It is park policy that we don't allow that kind
of thing any more,"Robinson told him of the baptisms.He explained
that there had been four drownings three years earlier, andthat everyone was
discouraged from going into the water.Robinson added that religious
activity is specifically prohibited. "Wedon't allow religious activities and
church services."Afterward, Pyle said he'd been unaware of the
prohibition. Before hisnext baptism, he said he would investigate the rules
and if the localgovernments forbade it, he'd find another place to
go.[end quote] Two questions:(1) Following Locke v.
Davey, is it constitutional for the governmentto say that "religious
activity is specifically prohibited"? I assumeyes, given Lamb's
Chapel, Rosenberger, and Pinette, since this activityis speech as well as
religious conduct. Or am I mistaken?(2) If Virginia had a
state RFRA, would an evenhanded restriction ongoing into the water be seen
as a substantial burden? (I assume thatthe rule would fail strict
scrutiny, if it had to be exposed to strictscrutiny, given that it seems
relatively unlikely that people woulddrown when surrounded by dozens of
people.)___To
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