RE: Baptisms in rivers located in public parks?
I seems to me that Locke is limited to religious
discrimination in funding programs (and maybe to cases
involving funding programs for the training of
clergy).
O'Connor, Souter, and Breyer are strong supporters of
the old Sherbert Free Exercise conduct exemption. I
cannot imagine any of them voting to allow religious
activities to be singled out for exclusion from public
property or other public benefits.
Am I wrong about this?
Rick Duncan
--- "Christopher C. Lund" <[EMAIL PROTECTED]> wrote:
> Assuming that religion is being singled
> out, I'm wondering if it's
> necessarily the case that the restriction is
> violates the Free Exercise
> Clause. The restriction seems to have the two
> saving criteria that the
> restriction did in Locke -- it discriminates
> generally against all religions
> (""We don't allow religious activities [generally]")
> and it does not attach
> "criminal nor civil sanctions," Locke, slip op. at
> 6, to the religious
> activity in question (it just denies public
> space/property/resources to it).
>
> Whether Locke covers this case seems to all
> depend on how central
> the Court's discussion of the states' historical
> tradition of refusing to
> fund religious activities was to Locke's result and
> what exactly that
> historical tradition can be stretched to cover. One
> could argue that the
> government has a "historical and substantial state
> interest," Locke, slip
> op. at 11, whenever it attempts to prevent religious
> groups (as a whole)
> from having access to any governmental resources
> that can be considered as
> "subsidizing" religion.
>
> I think we are used to rejecting that
> argument because that it was
> pushed on the Court throughout the
> Widmar/Mergens/Lamb's Chapel/Rosenburger
> line of cases, which completely reject its logic.
> But those cases are now
> just speech cases, only applying when a forum exists
> for speech.
>
> So after Locke, isn't it at least arguable
> that the government
> could begin excluding religious groups from any
> generally available public
> benefit (i.e. public monies, public property,
> tax-exempt status) that would
> or could be used to promote religion, provided there
> is no speech forum at
> issue? Locke certainly seems to confirm the
> implicit assumption in Walz --
> that the selective denial of tax-exempt status to
> religious institutions
> would raise no free-exercise problems -- right?
> What else could it be
> argued to cover?
>
> Chris Lund
>
>
> From: "Volokh, Eugene" <[EMAIL PROTECTED]>
> Reply-To: Law & Religion issues for Law Academics
> <[EMAIL PROTECTED]>
> To: "Law & Religion issues for Law Academics"
> <[EMAIL PROTECTED]>
> Subject: RE: Baptisms in rivers located in public
> parks?
> Date: Mon, 24 May 2004 17:41:21 -0700
>
> 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'?"
>
> Yes, I do, sorry about that!
>
> 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.)
>
> I assume it is being singled out, given the
> statement that "He
> explained that there had been four drownings three
> years earlier, and
> that everyone was discouraged from going into the
> water.
> Robinson added that religious activity is
> specifically prohibited. 'We
> don't allow religious activities and church
> services.'"
>
> 2. Whether it would be a substantial burden under a
> state RFRA
> would depend, I suppose, on the availability of
> alternative locales.
> But I wouldn't be so sure the government wouldn't
> prevail on "compelling
RE: Baptisms in rivers located in public parks?
I think that's right, just as an exception to "Don't go in the
water" park rules for environmentalists' secular symbolic speech (e.g.,
"We'll have a demonstration in which we'll go in the water to show our
commitment to preserving nature") would be unconstitutional.
> -Original Message-
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of A.E.
> Brownstein
> Sent: Tuesday, May 25, 2004 10:36 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Baptisms in rivers located in public parks?
>
>
> Just to be clear, Eugene. I take it you would also argue that
> an exemption
> from a "Don't go in the water" park regulation for public
> baptisms would
> also be unconstitutional viewpoint discrimination.
>
> Alan Brownstein
> UC Davis
>
>
> At 10:25 AM 5/25/2004 -0700, you wrote:
> > I agree with Tom on point 2, but I wonder about point 1. The
> >public baptism, as I understand it, was public precisely
> because it was
> >intended to convey a message to the public ("we're not
> ashamed of being
> >Christian"). The baptism is a group ceremony partly because it is
> >intended to convey a message to the congregation (perhaps
> "this is what
> >we believe in, and this person is joining us"). The conduct
> portion of
> >the ceremony -- being dunked in the water -- isn't being engaged in
> >because of any secular noncommunicative effects of the behavior.
> >People aren't trying to cool off, or exercise their muscles,
> or enjoy
> >the feeling of water on their skin, or all the other reasons
> people go
> >into the water.
> >
> > This seems then to be a form of expressive conduct, intended to
> >and likely to convey a message to both fellow congregants and to the
> >public. It's no less expressive conduct, I think, than (say)
> burning a
> >flag or burning a draft card. The conduct is being barred
> because it
> >was religious, under a rule that bars "church services" -- clearly
> >speech -- as well as "religious activities" more broadly. Why isn't
> >this the same as Rosenberger or Lamb's Chapel? Is it just
> because the
> >distinction is based on the religious motivation of the
> conduct, rather
> >than specifically the message? Would a ban on any group
> meetings that
> >are "motivated by their speakers' religious beliefs" have
> been OK under
> >Lamb's Chapel?
> >
> > Eugene
> >
> >-Original Message-
> >From: [EMAIL PROTECTED]
> >[mailto:[EMAIL PROTECTED] On Behalf Of
> Berg, Thomas
> >C.
> >Sent: Tuesday, May 25, 2004 8:59 AM
> >To: Law & Religion issues for Law Academics; Law & Religion
> issues for
> >Law Academics
> >Subject: RE: Baptisms in rivers located in public parks?
> >
> >
> >Marty, in your post you say that there would be no free speech claim
> >here, even if the religious ceremony were singled out for
> prohibition,
> >because (1) baptism is more conduct than speech and (2) "more
> >importantly, the state obviously hasn't created any sort of public
> >forum in the public river." I get point #1, but on #2, are
> you saying
> >that even if the activity were highly expressive, singling
> out of the
> >religious activity would only trigger strict scrutiny (i.e. be
> >unconstitutional) if there was a public forum of some kind?
> If so, I
> >don't think I agree. Singling out of the religious
> expression would be
> >discrimination by viewpoint under Rosenberger, which is
> >unconstitutional even in a nonpublic forum under repeated statements
> >(albeit perhaps
> >dicta) in Cornelius, Lamb's Chapel, etc. And as you note,
> there would
> >be no plausible claim in this context that the city was somehow
> >sponsoring or involved with the activity, so that religion could be
> >singled out in order to avoid establishment concerns. Similarly, I
> >don't think that Locke v.Davey (or American Library
> Association) changes
> >that; although they both rejected the viewpoint-discrimination claim
> >because no public forum was involved, they were, as you noted as to
> >Locke, cases about funding rather than access to facilities.
> Isn't it
> >still good law that singling out of a religious viewpoint
> for exclusion
> >from non-financial access is unconstitutional, or at least triggers
> >strict scrutiny, even in a nonpublic forum?
> >
> >Tom Berg
> >University of St. Thomas School of Law (Minnesota)
> >
> >
>
> ___
> To post, send message to [EMAIL PROTECTED]
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>
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RE: Baptisms in rivers located in public parks?
Just to be clear, Eugene. I take it you would also argue that an exemption
from a "Don't go in the water" park regulation for public baptisms would
also be unconstitutional viewpoint discrimination.
Alan Brownstein
UC Davis
At 10:25 AM 5/25/2004 -0700, you wrote:
I agree with Tom on point 2, but I wonder about point 1. The public
baptism, as I understand it, was public precisely because it was
intended to convey a message to the public ("we're not ashamed of being
Christian"). The baptism is a group ceremony partly because it is
intended to convey a message to the congregation (perhaps "this is what
we believe in, and this person is joining us"). The conduct portion of
the ceremony -- being dunked in the water -- isn't being engaged in
because of any secular noncommunicative effects of the behavior. People
aren't trying to cool off, or exercise their muscles, or enjoy the
feeling of water on their skin, or all the other reasons people go into
the water.
This seems then to be a form of expressive conduct, intended to and
likely to convey a message to both fellow congregants and to the public.
It's no less expressive conduct, I think, than (say) burning a flag or
burning a draft card. The conduct is being barred because it was
religious, under a rule that bars "church services" -- clearly speech --
as well as "religious activities" more broadly. Why isn't this the same
as Rosenberger or Lamb's Chapel? Is it just because the distinction is
based on the religious motivation of the conduct, rather than
specifically the message? Would a ban on any group meetings that are
"motivated by their speakers' religious beliefs" have been OK under
Lamb's Chapel?
Eugene
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C.
Sent: Tuesday, May 25, 2004 8:59 AM
To: Law & Religion issues for Law Academics; Law & Religion issues for
Law Academics
Subject: RE: Baptisms in rivers located in public parks?
Marty, in your post you say that there would be no free speech claim
here, even if the religious ceremony were singled out for prohibition,
because (1) baptism is more conduct than speech and (2) "more
importantly, the state obviously hasn't created any sort of public forum
in the public river." I get point #1, but on #2, are you saying that
even if the activity were highly expressive, singling out of the
religious activity would only trigger strict scrutiny (i.e. be
unconstitutional) if there was a public forum of some kind? If so, I
don't think I agree. Singling out of the religious expression would be
discrimination by viewpoint under Rosenberger, which is unconstitutional
even in a nonpublic forum under repeated statements (albeit perhaps
dicta) in Cornelius, Lamb's Chapel, etc. And as you note, there would
be no plausible claim in this context that the city was somehow
sponsoring or involved with the activity, so that religion could be
singled out in order to avoid establishment concerns. Similarly, I
don't think that Locke v.Davey (or American Library Association) changes
that; although they both rejected the viewpoint-discrimination claim
because no public forum was involved, they were, as you noted as to
Locke, cases about funding rather than access to facilities. Isn't it
still good law that singling out of a religious viewpoint for exclusion
from non-financial access is unconstitutional, or at least triggers
strict scrutiny, even in a nonpublic forum?
Tom Berg
University of St. Thomas School of Law (Minnesota)
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Re: Baptisms in rivers located in public parks?
In a message dated 5/25/2004 1:38:32 PM Eastern Daylight Time, [EMAIL PROTECTED] writes: Nor do I think it's plausible to say (at least I hope it's not plausible to say) that the city is "singling out" religious use of the river because of the religious viewpoint involved. Presumably, the city is prohibiting baptism because of its decidedly non-expressive elements, viz., that it involves one person submersing another (often an infant) in water, and the government is completely indifferent to any "viewpoint" that the conduct might incidentally express. Well, it wants to be noted that these are Baptists. The resort to infant baptism among them is beyond unlikely. Rejection of infant baptism is a distinctive of the sect going way back to the founders of the Mennonite sect, Menno Simons, and beyond that to the founders of Anabaptism (so called for their public practice of re-baptizing each other as adults). More to the point in the text of the article, the quotation attributed to the park official makes two key points. First, swimming is discouraged. Second, no religious activities or services are allowed. Swimming is not prohibited, it is discouraged. Other uses of the Rappahanock are discouraged, but not prohibited. It was the baptisms that the Park official prohibited. The Park official is, in essence, saying, we won't stop you from swimming, but everyone will know that we told you that you shouldn't; but we will directly and abruptly stop you from baptizing. What possible justification exists for that distinction? Non-religious activities and events are permitted in the park and the park is promoted as a place for such activities and events. (Do a search on the internet for Falmouth Waterfront Park to confirm this fact.) It is the religious nature of the activity that brought it to the attention of the Park official and led to his statement that such activities are prohibited. We have successfully challenged such targetted restrictions on religious activities, even in locations that are not traditional public fora. See Bynum v. U.S. Capitol Police Bd., 93F.Supp.2d50 (DDC 2000). Jim Henderson Senior Counsel ACLJ ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
RE: Baptisms in rivers located in public parks?
The error was mine, as Marty pointed out. I meant to say "(1) Following Locke v. Davey, is it *un*constitutional for the government to say that 'religious activity is specifically prohibited'? I assume yes, given Lamb's Chapel, Rosenberger, and Pinette, since this activity is speech as well as religious conduct. Or am I mistaken?" Just two letters, but oh, what a difference! > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Newsom Michael > Sent: Tuesday, May 25, 2004 10:43 AM > To: Law & Religion issues for Law Academics > Subject: RE: Baptisms in rivers located in public parks? > > > Eugene, these may be the ramblings of an old law professor > fast approaching senility. But could you please say a bit > more about your point #1? I think that I agree with you > about Locke v. Davey, but I thought that the gist of the > other cases was that the prohibition you describe in #1 would > be problematic at best. (Herein of "discrimination" and > "neutrality.") > > I say that I *think* that I agree with you about Locke v. > Davey because I wonder just how far the case extends. There > is something about schooling and education more generally > that generate constitutional concerns that may or may not be > present when wading in the water, even if the water is in a > public park. > > > Two questions: > > (1) Following Locke v. Davey, is it constitutional for the > government to say that "religious activity is specifically > prohibited"? I assume yes, given Lamb's Chapel, Rosenberger, > and Pinette, since this activity is speech as well as > religious conduct. Or am I mistaken? > > (2) If Virginia had a state RFRA, would an evenhanded > restriction on going into the water be seen as a substantial > burden? (I assume that the rule would fail strict scrutiny, > if it had to be exposed to strict scrutiny, given that it > seems relatively unlikely that people would drown when > surrounded by dozens of people.) > > > ___ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get password, > see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > ___ > To post, send message to [EMAIL PROTECTED] > To subscribe, unsubscribe, change options, or get password, > see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Baptisms in rivers located in public parks?
In a message dated 5/25/2004 1:25:54 PM Eastern Daylight Time, [EMAIL PROTECTED] writes:
I agree with Tom on point 2, but I wonder about point 1. The publicbaptism, as I understand it, was public precisely because it wasintended to convey a message to the public ("we're not ashamed of beingChristian"). The baptism is a group ceremony partly because it isintended to convey a message to the congregation (perhaps "this is whatwe believe in, and this person is joining us"). The conduct portion ofthe ceremony -- being dunked in the water -- isn't being engaged inbecause of any secular noncommunicative effects of the behavior. Peoplearen't trying to cool off, or exercise their muscles, or enjoy thefeeling of water on their skin, or all the other reasons people go intothe water.
Several years ago we represented Emily and Timothy Hsu in their fairly successful challenge to denial of accommodations for their Christian Student Fellowship in the high school operated by the Roslyn Unified School District on Long Island. See Hsu v. Roslyn Unified School District, 85 F.3d 839 (2nd Cir. 1996). The principal disputed issue was whether the club could require that eligibility for office in the Fellowship was limited to those person, who, by baptism or otherwise, have made a public proclamation of their faith in Jesus Christ. (FYI, the Second Circuit "split the baby," holding that the profession requirement was a bona fide qualification for those offices that were possessed of spiritual dimensions and responsibilities, such as the President and Vice-President, who had worship and teaching duties, but not as to the secretary and the treasurer.)
Unlike many religious acts of devotion, baptism plainly has, in its traditional and widest held sense, an expressive component that is significant and substantial.
Jim Henderson
Senior Counsel
ACLJ
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RE: Baptisms in rivers located in public parks?
Eugene, these may be the ramblings of an old law professor fast approaching senility. But could you please say a bit more about your point #1? I think that I agree with you about Locke v. Davey, but I thought that the gist of the other cases was that the prohibition you describe in #1 would be problematic at best. (Herein of "discrimination" and "neutrality.") I say that I *think* that I agree with you about Locke v. Davey because I wonder just how far the case extends. There is something about schooling and education more generally that generate constitutional concerns that may or may not be present when wading in the water, even if the water is in a public park. Two questions: (1) Following Locke v. Davey, is it constitutional for the government to say that "religious activity is specifically prohibited"? I assume yes, given Lamb's Chapel, Rosenberger, and Pinette, since this activity is speech as well as religious conduct. Or am I mistaken? (2) If Virginia had a state RFRA, would an evenhanded restriction on going into the water be seen as a substantial burden? (I assume that the rule would fail strict scrutiny, if it had to be exposed to strict scrutiny, given that it seems relatively unlikely that people would drown when surrounded by dozens of people.) ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Re: Baptisms in rivers located in public parks?
Sorry if I was less clear than I ought to have been, Tom. My principal point was not that the river is a "nonpublic forum" for private speech, but that it isn't a "speech forum" of any kind. Nor do I think it's plausible to say (at least I hope it's not plausible to say) that the city is "singling out" religious use of the river because of the religious viewpoint involved. Presumably, the city is prohibiting baptism because of its decidedly non-expressive elements, viz., that it involves one person submersing another (often an infant) in water, and the government is completely indifferent to any "viewpoint" that the conduct might incidentally express. Of course, if it could be demonstrated that the city's interest truly were to prevent the _expression_ of religious viewpoints on public grounds, then that would raise serious Free Speech Clause questions even in the absence of a speech "forum" (i.e., even if Rosenberger, et al., do not apply), because of the oft-invoked principle that "even in the provision of subsidies, the Government may not 'ai[m] at the suppression of dangerous ideas.'" Finley, 524 U.S. at 587 (quoting Regan). Even then, of course, invalidation would by no means be a sure thing, because the Court is reluctant to look behind the face of an ordinance to discover the illicit "aim." See, e.g., Erie v. PAP's, 529 U.S. at 292. For these reasons, as well as those expressed in my previous post, I think that if there is a real problem here, it is much more likely to be addressed under the Free Exercise Clause, and Lukumi, than under the Free Speech Clause. - Original Message - From: "Berg, Thomas C." <[EMAIL PROTECTED]> To: "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]>; "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]> Sent: Tuesday, May 25, 2004 11:58 AM Subject: RE: Baptisms in rivers located in public parks? > Marty, in your post you say that there would be no free speech claim here,> even if the religious ceremony were singled out for prohibition, because (1)> baptism is more conduct than speech and (2) "more importantly, the state> obviously hasn't created any sort of public forum in the public river." I> get point #1, but on #2, are you saying that even if the activity were> highly expressive, singling out of the religious activity would only trigger> strict scrutiny (i.e. be unconstitutional) if there was a public forum of> some kind? If so, I don't think I agree. Singling out of the religious> _expression_ would be discrimination by viewpoint under Rosenberger, which is> unconstitutional even in a nonpublic forum under repeated statements (albeit> perhaps dicta) in Cornelius, Lamb's Chapel, etc. And as you note, there> would be no plausible claim in this context that the city was somehow> sponsoring or involved with the activity, so that religion could be singled> out in order to avoid establishment concerns. Similarly, I don't think that> Locke v.Davey (or American Library Association) changes that; although they> both rejected the viewpoint-discrimination claim because no public forum was> involved, they were, as you noted as to Locke, cases about funding rather> than access to facilities. Isn't it still good law that singling out of a> religious viewpoint for exclusion from non-financial access is> unconstitutional, or at least triggers strict scrutiny, even in a nonpublic> forum?> > Tom Berg> University of St. Thomas School of Law (Minnesota)> > > > > > > _ > > From: Volokh, Eugene [mailto:[EMAIL PROTECTED]> Sent: Mon 5/24/2004 7:41 PM> To: Law & Religion issues for Law Academics> Subject: RE: Baptisms in rivers located in public parks?> > > 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'?" > > Yes, I do, sorry about that! > > 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
RE: Baptisms in rivers located in public parks?
I agree with Tom on point 2, but I wonder about point 1. The public
baptism, as I understand it, was public precisely because it was
intended to convey a message to the public ("we're not ashamed of being
Christian"). The baptism is a group ceremony partly because it is
intended to convey a message to the congregation (perhaps "this is what
we believe in, and this person is joining us"). The conduct portion of
the ceremony -- being dunked in the water -- isn't being engaged in
because of any secular noncommunicative effects of the behavior. People
aren't trying to cool off, or exercise their muscles, or enjoy the
feeling of water on their skin, or all the other reasons people go into
the water.
This seems then to be a form of expressive conduct, intended to and
likely to convey a message to both fellow congregants and to the public.
It's no less expressive conduct, I think, than (say) burning a flag or
burning a draft card. The conduct is being barred because it was
religious, under a rule that bars "church services" -- clearly speech --
as well as "religious activities" more broadly. Why isn't this the same
as Rosenberger or Lamb's Chapel? Is it just because the distinction is
based on the religious motivation of the conduct, rather than
specifically the message? Would a ban on any group meetings that are
"motivated by their speakers' religious beliefs" have been OK under
Lamb's Chapel?
Eugene
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C.
Sent: Tuesday, May 25, 2004 8:59 AM
To: Law & Religion issues for Law Academics; Law & Religion issues for
Law Academics
Subject: RE: Baptisms in rivers located in public parks?
Marty, in your post you say that there would be no free speech claim
here, even if the religious ceremony were singled out for prohibition,
because (1) baptism is more conduct than speech and (2) "more
importantly, the state obviously hasn't created any sort of public forum
in the public river." I get point #1, but on #2, are you saying that
even if the activity were highly expressive, singling out of the
religious activity would only trigger strict scrutiny (i.e. be
unconstitutional) if there was a public forum of some kind? If so, I
don't think I agree. Singling out of the religious expression would be
discrimination by viewpoint under Rosenberger, which is unconstitutional
even in a nonpublic forum under repeated statements (albeit perhaps
dicta) in Cornelius, Lamb's Chapel, etc. And as you note, there would
be no plausible claim in this context that the city was somehow
sponsoring or involved with the activity, so that religion could be
singled out in order to avoid establishment concerns. Similarly, I
don't think that Locke v.Davey (or American Library Association) changes
that; although they both rejected the viewpoint-discrimination claim
because no public forum was involved, they were, as you noted as to
Locke, cases about funding rather than access to facilities. Isn't it
still good law that singling out of a religious viewpoint for exclusion
from non-financial access is unconstitutional, or at least triggers
strict scrutiny, even in a nonpublic forum?
Tom Berg
University of St. Thomas School of Law (Minnesota)
From: Volokh, Eugene [mailto:[EMAIL PROTECTED]
Sent: Mon 5/24/2004 7:41 PM
To: Law & Religion issues for Law Academics
Subject: RE: Baptisms in rivers located in public parks?
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'?"
Yes, I do, sorry about that!
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.)
I assume it is being singled out, given the statement that "
RE: Baptisms in rivers located in public parks?
Marty, in your post you say that there would be no free speech claim here, even if the religious ceremony were singled out for prohibition, because (1) baptism is more conduct than speech and (2) "more importantly, the state obviously hasn't created any sort of public forum in the public river." I get point #1, but on #2, are you saying that even if the activity were highly expressive, singling out of the religious activity would only trigger strict scrutiny (i.e. be unconstitutional) if there was a public forum of some kind? If so, I don't think I agree. Singling out of the religious expression would be discrimination by viewpoint under Rosenberger, which is unconstitutional even in a nonpublic forum under repeated statements (albeit perhaps dicta) in Cornelius, Lamb's Chapel, etc. And as you note, there would be no plausible claim in this context that the city was somehow sponsoring or involved with the activity, so that religion could be singled out in order to avoid establishment concerns. Similarly, I don't think that Locke v.Davey (or American Library Association) changes that; although they both rejected the viewpoint-discrimination claim because no public forum was involved, they were, as you noted as to Locke, cases about funding rather than access to facilities. Isn't it still good law that singling out of a religious viewpoint for exclusion from non-financial access is unconstitutional, or at least triggers strict scrutiny, even in a nonpublic forum? Tom Berg University of St. Thomas School of Law (Minnesota) _ From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Mon 5/24/2004 7:41 PM To: Law & Religion issues for Law Academics Subject: RE: Baptisms in rivers located in public parks? 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'?" Yes, I do, sorry about that! 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.) I assume it is being singled out, given the statement that "He explained that there had been four drownings three years earlier, and that everyone was discouraged from going into the water. Robinson added that religious activity is specifically prohibited. 'We don't allow religious activities and church services.'" 2. Whether it would be a substantial burden under a state RFRA would 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 the water, 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." Why not? As I understood it, here's a major argument in favor of strict scrutiny under religious accommodation regimes: "Sure, some generally applicable laws are important in general. But exempting religious practices would often in fact have no real impact on the government interest. Applying the law to religious objectors thus isn't necessary to serve a compelling government interest." So, the argument would go, while lots of people abuse peyote, in fact it's quite unlikely that peyote abuse would actually happen in religious ceremonies. While not educating children is usually bad, the Amish have shown that they take care of their children well. (I'm actually skeptical of that argument on the facts in Yoder, but that's what the Court basically held.) Likewise, if strict scrutiny is the right test, wouldn't the fact that (1) baptisms are rarely done in very deep water or inclement weather,
RE: Baptisms in rivers located in public parks?
Assuming that religion is being singled out, I'm wondering if it's
necessarily the case that the restriction is violates the Free Exercise
Clause. The restriction seems to have the two saving criteria that the
restriction did in Locke -- it discriminates generally against all religions
(""We don't allow religious activities [generally]") and it does not attach
"criminal nor civil sanctions," Locke, slip op. at 6, to the religious
activity in question (it just denies public space/property/resources to it).
Whether Locke covers this case seems to all depend on how central
the Court's discussion of the states' historical tradition of refusing to
fund religious activities was to Locke's result and what exactly that
historical tradition can be stretched to cover. One could argue that the
government has a "historical and substantial state interest," Locke, slip
op. at 11, whenever it attempts to prevent religious groups (as a whole)
from having access to any governmental resources that can be considered as
"subsidizing" religion.
I think we are used to rejecting that argument because that it was
pushed on the Court throughout the Widmar/Mergens/Lamb's Chapel/Rosenburger
line of cases, which completely reject its logic. But those cases are now
just speech cases, only applying when a forum exists for speech.
So after Locke, isn't it at least arguable that the government
could begin excluding religious groups from any generally available public
benefit (i.e. public monies, public property, tax-exempt status) that would
or could be used to promote religion, provided there is no speech forum at
issue? Locke certainly seems to confirm the implicit assumption in Walz --
that the selective denial of tax-exempt status to religious institutions
would raise no free-exercise problems -- right? What else could it be
argued to cover?
Chris Lund
From: "Volokh, Eugene" <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics
<[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]>
Subject: RE: Baptisms in rivers located in public parks?
Date: Mon, 24 May 2004 17:41:21 -0700
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'?"
Yes, I do, sorry about that!
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.)
I assume it is being singled out, given the statement that "He
explained that there had been four drownings three years earlier, and
that everyone was discouraged from going into the water.
Robinson added that religious activity is specifically prohibited. 'We
don't allow religious activities and church services.'"
2. Whether it would be a substantial burden under a state RFRA
would 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 the
water, 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."
Why not? As I understood it, here's a major argument in favor
of strict scrutiny under religious accommodation regimes: "Sure, some
generally applicable laws are important in general. But exempting
religious practices would often in fact have no real impact on the
government interest. Applying the law to religious objectors thus isn't
necessary to serve a compelling government interest." So, the argument
would go, while lot
