RE: Alito Views SCOTUS Doctrine as Giving Impression of HostilitytoReligious Expression
My organization represented CEF in the Stafford case. Prof. Volokh is correct that the school district argued that the Establishment Clause required it to deny CEF benefits available to other community organizations. The essence of their argument was that they needed to protect little kids from religion. Greg Baylor Gregory S. Baylor Director, Center for Law Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 (703) 642-1070 x 3502 (703) 642-1075 fax [EMAIL PROTECTED] http://www.clsnet.org -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 04, 2005 12:15 PM To: Law Religion issues for Law Academics Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of HostilitytoReligious Expression I suspect that Alito's response was in large part a reaction to two cases that he heard on the Third Circuit: Child Evangelism Fellowship of New Jersey Inc. v. Stafford Tp. School Dist., 386 F.3d 514 (3rd Cir. 2004), and C.H. v. Oliva, 226 F.3d 198 (3rd Cir. 2000). In both, the government's lawyers -- presumably not ones who are easily duped by unrelenting rhetoric we hear from the right -- apparently argued that the Establishment Clause required government entities to discriminate against private religious speech (i.e., religious speech by students or by private organizations, not religious speech by school officials in their official capacity) in schools. In Oliva, the lower court seemed to at least partly endorse this view, though its comments are a little cryptic. (And of course in Oliva, the Third Circuit ultimately concluded that the school was entitled to discriminate against the religious speech, though it didn't hold that such discrimination was required.) I haven't read the briefs in those cases, but if I were the government lawyer making that argument, I'd certainly have something to point to in the Court's decisions -- for instance, the concurrences in Pinette, which seem to suggest that the Establishment Clause sometimes may require discrimination against private religious speech, and even the plurality in Pinette, which says that compliance with the Establishment Clause is a compelling interest justifying what would otherwise be a violation of the Free Speech Clause (rather than that compliance with the Free Speech Clause is an adequate justification for what would otherwise be a violation of the Establishment Clause). My guess is that if Alito did say that the Court's doctrine really gives the impression of hostility to religious speech and religious expression and that the court had erred by going too far in prohibiting government support for religion at the risk of hampering individual expression of religion -- I say if because my sense is that it's hard to be confident of the accuracy of such second-hand quotes -- he was likely alluding to what he saw while participating in those cases: The Court's doctrine has created, among many government officials (as well as among critics of those officials) an impression that private religious speech is in some measure constitutionally disfavored, and that private religious speech can be and perhaps must be subject to special restrictions. And that strikes me as quite a sensible criticism of the Court's doctrine, though of course there are also quite sensible defenses of the Court's doctrine. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed Brayton Sent: Friday, November 04, 2005 8:42 AM To: 'Law Religion issues for Law Academics' Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostilityto Religious Expression -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Francis Beckwith Sent: Friday, November 04, 2005 9:21 AM To: Law Religion issues for Law Academics Subject: Re: Alito Views SCOTUS Doctrine as Giving Impression of Hostility to Religious Expression I don't want to be too picky here, but Alito is saying impression of hostility, not necessarily hostility. So, in a sense, he does not disagree with Marty. Alito says impression, and Marty says misperception. A misperception is in fact an impression, but an inaccurate one. I do think that Alito is correct that there is an impression of hostility. Now whether that impression is justified is ever or always justified is another question. But clearly Alito is justified in saying that many ordinary people in fact have that impression. I'm going to suggest that a large part of this misconception is the result of the almost unrelenting rhetoric we hear from the right claiming that the courts are hostile to religion, want to stamp it out from society, have thrown God out of the schools and so forth. I've had countless conversations with people who are shocked to find out what the courts have actually ruled on various religious expression
Re: Alito Views SCOTUS Doctrine as Giving Impression of HostilitytoReligious ...
In a message dated 11/4/2005 12:32:13 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: My organization represented CEF in the Stafford case. Prof. Volokh iscorrect that the school district argued that the Establishment Clauserequired it to deny CEF benefits available to other community organizations.The essence of their argument was that they needed to protect little kidsfrom religion. For anyone with the time and energy, read the brief of the State of New York in the United States Supreme Court in Lambs Chapel v. Center Moriches Union Free School District. The hostility of the State of New York fairly reeks from the pages of the brief. Most notable is the "religion is only of a benefit to its adherents" remark. (Perhaps unfairly, Justice Scalia put a pointed question to the school board's attorney about that bizarre claim, even though the school board had not climbed quite so far out on the branch as had the NYAG. I still chuckle atrecalling hisinterrogatory, "How's life in the new regime?") That notion - religion only benefits those who believe- is fairly distant from the folks who, during our wastrel and misspent youths, urged us to attend our places of worship this weekend (public service announcements during Saturday cartoons, brought to us by "Religion in Public Life" and the "Ad Council"). If there are voices on this list who doubt the value of religions in which they place no faith, that is all well and good for them, but every time an all too human impulse to pulverize someone or steal their car or their spouse is suppressed by a sense of religiously inspired morality, then I count myself benefitted, and on that basis, even the most ardent atheist enjoys relative peace and quiet in this nation because religion, if nothing else, opiates the masses. And thehostility expressed in that brief is not the invention in the first degree ofthe Supreme Court, and of the lower federal courts in New York, but of the state's officials; the brief, after all expressed the view of the Attorney General of New York. There was, however, a trail of evidence indicatingindifference to or ignorance of the law or disregard for the teaching of the Supreme Court in the area of First Amendment rights in the lower court decisions, and in subsequent decisions of both lower courts in cases involving other challenges to denial of religious uses of New York school facilities.And that, I think, fairly supports the impression of hostility. Jim Henderson Senior Counsel ACLJ ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Alito Views SCOTUS Doctrine as Giving Impression of HostilitytoReligious Expression
Eugene accurately describes the school board's briefs in these cases. And the captive audience argument in Oliva is at least plausible, so that that case is different from the cases decided in the Supreme Court. But Stafford should have been a routine case about announcing meetings of a private club. There is no decision of the Supreme Court that permits or requires discrimination against private religious speech because of its religious content. The line of cases protecting religious speech go back at least to the the Jehovah's Witness cases in the 30s and 40s, and there are no exceptions. The secular school boards in the north and west who keep resisting private religious speech are as obstructionist and defiant as the evangelical school boards in the south who keep resisting the school prayer cases. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Friday, November 04, 2005 11:15 AM To: Law Religion issues for Law Academics Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of HostilitytoReligious Expression I suspect that Alito's response was in large part a reaction to two cases that he heard on the Third Circuit: Child Evangelism Fellowship of New Jersey Inc. v. Stafford Tp. School Dist., 386 F.3d 514 (3rd Cir. 2004), and C.H. v. Oliva, 226 F.3d 198 (3rd Cir. 2000). In both, the government's lawyers -- presumably not ones who are easily duped by unrelenting rhetoric we hear from the right -- apparently argued that the Establishment Clause required government entities to discriminate against private religious speech (i.e., religious speech by students or by private organizations, not religious speech by school officials in their official capacity) in schools. In Oliva, the lower court seemed to at least partly endorse this view, though its comments are a little cryptic. (And of course in Oliva, the Third Circuit ultimately concluded that the school was entitled to discriminate against the religious speech, though it didn't hold that such discrimination was required.) I haven't read the briefs in those cases, but if I were the government lawyer making that argument, I'd certainly have something to point to in the Court's decisions -- for instance, the concurrences in Pinette, which seem to suggest that the Establishment Clause sometimes may require discrimination against private religious speech, and even the plurality in Pinette, which says that compliance with the Establishment Clause is a compelling interest justifying what would otherwise be a violation of the Free Speech Clause (rather than that compliance with the Free Speech Clause is an adequate justification for what would otherwise be a violation of the Establishment Clause). My guess is that if Alito did say that the Court's doctrine really gives the impression of hostility to religious speech and religious expression and that the court had erred by going too far in prohibiting government support for religion at the risk of hampering individual expression of religion -- I say if because my sense is that it's hard to be confident of the accuracy of such second-hand quotes -- he was likely alluding to what he saw while participating in those cases: The Court's doctrine has created, among many government officials (as well as among critics of those officials) an impression that private religious speech is in some measure constitutionally disfavored, and that private religious speech can be and perhaps must be subject to special restrictions. And that strikes me as quite a sensible criticism of the Court's doctrine, though of course there are also quite sensible defenses of the Court's doctrine. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Ed Brayton Sent: Friday, November 04, 2005 8:42 AM To: 'Law Religion issues for Law Academics' Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostilityto Religious Expression -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Francis Beckwith Sent: Friday, November 04, 2005 9:21 AM To: Law Religion issues for Law Academics Subject: Re: Alito Views SCOTUS Doctrine as Giving Impression of Hostility to Religious Expression I don't want to be too picky here, but Alito is saying impression of hostility, not necessarily hostility. So, in a sense, he does not disagree with Marty. Alito says impression, and Marty says misperception. A misperception is in fact an impression, but an inaccurate one. I do think that Alito is correct that there is an impression of hostility. Now whether that impression is justified is ever or always justified is another question. But clearly Alito is justified in saying that many ordinary people in fact have
Re: Alito Views SCOTUS Doctrine as Giving Impression of HostilitytoReligious ...
In a message dated 11/4/2005 12:51:37 PM Eastern Standard Time, [EMAIL PROTECTED] writes: If there are voices on this list who doubt the value of religions in which they place no faith, that is all well and good for them, but every time an all too human impulse to pulverize someone or steal their car or their spouse is suppressed by a sense of religiously inspired morality, then I count myself benefitted, and on that basis, even the most ardent atheist enjoys relative peace and quiet in this nation because religion, if nothing else, opiates the masses. Two brief responses: (1) What aboutreligious upbringing that fails to suppress such conduct? and (2) What about secular motives that do suppress violence and cruelty? The idea that religion must be the basis of any good morality--concern and respect for others--is question begging, and I must say, with all due respect, offensive. And, of course, it completely ignores all the wars and violence throughout history based, at least in substantial part, on religion. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Alito Views SCOTUS Doctrine as Giving Impression of HostilitytoReligious ...
In a message dated 11/4/2005 1:23:44 P.M. Eastern Standard Time, [EMAIL PROTECTED] writes: The idea that religion must be the basis of any good morality--concern and respect for others--is question begging, and I must say, with all due respect, offensive. And, of course, it completely ignores all the wars and violence throughout history based, at least in substantial part, on religion. If I offended, I apologize. I found the NYAG's myopic failure to recognize the value of hospitals, universities, savings and loan institutions, soup kitchens, vocational rehabilitation programs, benevolence funds, etc., to be offensive. These unassailable and yet annoying things, these facts, just cannot be swept under the rug with the convenient but inelegantly fitted charge of martial cruelties. Jim Henderson Senior Counsel ACLJ ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Alito Views SCOTUS Doctrine as Giving Impression of HostilitytoReligious ...
Jim Henderson wrote on 11/04/2005 12:39:02 PM: I found the NYAG's myopic failure to recognize the value of hospitals, universities, savings and loan institutions, soup kitchens, vocational rehabilitation programs, benevolence funds, etc., to be offensive. It sort of reminds me of the old question: If you're walking down a dark street at night, and you realize that a group of teenagers are about half-a-block behind you, do you feel safer if you know that they are on their way home from a Bible study as opposed to a party or a rock concert? I think most people would say, yes, we probably do. Brad___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
