Re: Alito Views SCOTUS Doctrine as Giving Impression of Hostility to Religious Expression
Title: Re: Alito Views SCOTUS Doctrine as Giving Impression of Hostility to Religious Expression I dont 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. Frank On 11/4/05 4:31 AM, Marty Lederman [EMAIL PROTECTED] wrote: http://www.nytimes.com/2005/11/04/politics/politicsspecial1/04confirm.html Alito believes 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? Even after Widmar and Mergens and Lamb's Chapel and Good News Club and Rosenberger, etc.? To be perfectly honest, I find this a bit disturbing -- particularly because it plays into the all-too-common public misperception that the Court's modern doctrine has been hostile to private religious _expression_. Nothing, of course, could be further from the truth. (Indeed, I think it's fair to say that the Court has done more to protect private religious _expression_ over the last 25 years than just about any other form of private _expression_.) What Alito appears to be getting at, of course, is not private _expression_, but govenmental speech (or government preferences for religious speech). In particular, he appears to have sent Cornyn signals that he thinks Santa Fe was wrongly decided -- which, if true, is very unfortunate, IMHO. Further evidence, I think, that one of the very first and most dramatic shifts of doctrine in the move from SOC to Alito will be w/r/t the Religion Clauses. Nominee Is Said to Question Church-State Rulings By DAVID D. KIRKPATRICK http://query.nytimes.com/search/query?ppds=bylLamp;v1=DAVID%20D.%20KIRKPATRICKamp;fdq=19960101amp;td=sysdateamp;sort=newestamp;ac=DAVID%20D.%20KIRKPATRICKamp;inline=nyt-per WASHINGTON, Nov. 3 - Senators of both parties said Thursday that Judge Samuel A. Alito Jr. http://topics.nytimes.com/top/reference/timestopics/people/a/samuel_a_alito_jr/index.html?inline=nyt-per , President Bush's choice for the Supreme Court, had told them he believed the court might have gone too far in separating church and state. Senator John Cornyn, a Texas http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/texas/index.html?inline=nyt-geo Republican on the Judiciary Committee, said that Thursday in a private meeting Judge Alito expressed empathy for the impression that the court's decisions were incoherent in this area of the law in a way that really gives the impression of hostility to religious speech and religious _expression_. Senator Robert C. Byrd, Democrat of West Virginia http://topics.nytimes.com/top/news/national/usstatesterritoriesandpossessions/westvirginia/index.html?inline=nyt-geo , said after his own meeting with the judge that he, too, was very satisfied that Judge Alito had said he believed the court had erred by going too far in prohibiting government support for religion at the risk of hampering individual _expression_ of religion. He indicated that people have a right, a very distinct right, to express their religious views, Mr. Byrd said. Although the senators said Judge Alito had not told them how he would rule in specific cases, their comments were the first indication of his views concerning one of the most contentious issues before the court. Many liberals and religious minorities view the court's jurisprudence on separation of church and state over the last 50 years as a bedrock principle of American life. But anger over the court's rulings against school prayer, government displays of the Ten Commandments and other public forms of religious _expression_ also played a major role in the birth of a conservative Christian political movement. The selection of Judge Alito, a conservative federal appeals court judge, has ignited passions on both sides of the aisle, in part because he would succeed Justice Sandra Day O'Connor http://topics.nytimes.com/top/reference/timestopics/people/o/sandra_day_oconnor/index.html?inline=nyt-per , who provided the swing vote on abortion rights and other issues. The intensity is so high that some members of Congress and outside groups worry that the divide over Judge Alito could lead to a filibuster. The so-called Gang of 14 - seven Democrats and seven Republicans who banded together this year to avert such a shutdown of the nominations process - met Thursday and publicly proclaimed their agreement intact, at least for now. Judge Alito's
Re: Alito Views SCOTUS Doctrine as Giving Impression of Hostility to Religious Expression
For not wanting to be picky, that was picking nits.But in the same vein, if what the court has done (as opposed to what the media and interest groups have done with what the court has actually done) is create that impression, and that impression is wrong, then the solution is to do something different to create a different impression.But Alito is, it seems to me, more likely to be simply trying to avoid accusing the sitting justices of subjective hostility while conveying the message that he thinks their decisions have been wrong and have had a hostile effect. A position touted on this list with distressing (to me) regularity.SteveOn Nov 4, 2005, at 9:21 AM, Francis Beckwith wrote: 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. Frank -- Prof. Steven D. Jamar vox: 202-806-8017Howard University School of Law fax: 202-806-85672900 Van Ness Street NW mailto:[EMAIL PROTECTED]Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/"I do not at all resent criticism, even when, for the sake of emphasis, it for a time parts company with reality."Winston Churchill, speech to the House of Commons, 1941 ___ 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 Hostility to Religious Expression
Title: Re: Alito Views SCOTUS Doctrine as Giving Impression of Hostility to Religious Expression Touche Steve. I guess not to be nitpicky is like with all due respect. :-) Take care, Frank On 11/4/05 8:50 AM, Steven Jamar [EMAIL PROTECTED] wrote: For not wanting to be picky, that was picking nits. But in the same vein, if what the court has done (as opposed to what the media and interest groups have done with what the court has actually done) is create that impression, and that impression is wrong, then the solution is to do something different to create a different impression. But Alito is, it seems to me, more likely to be simply trying to avoid accusing the sitting justices of subjective hostility while conveying the message that he thinks their decisions have been wrong and have had a hostile effect. A position touted on this list with distressing (to me) regularity. Steve On Nov 4, 2005, at 9:21 AM, Francis Beckwith wrote: I dont 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. Frank -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ I do not at all resent criticism, even when, for the sake of emphasis, it for a time parts company with reality. Winston Churchill, speech to the House of Commons, 1941 ___ 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. ___ 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 Hostility to Religious Expression
Title: Message -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Francis BeckwithSent: Friday, November 04, 2005 9:21 AMTo: Law Religion issues for Law AcademicsSubject: Re: Alito Views SCOTUS Doctrine as Giving Impression of Hostility to Religious _expression_I dont 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_ cases, people whose sole source for information about the courts are religious right leaders who engage in the most inflammatory rhetoric about "judicial tyranny" and "unelected judges" who are busy "destroying America's Christian heritage" and so forth. Inevitably, these folks are sure that no student can dare to speak about their religious views in a public school, and when I point out to them the various rulings by which the courts have explicitly protected the rights of students to choose religious subjects for papers, to use school facilities for bible clubs, to hand out religious literature to their fellow students, etc, some of them simply can't believe that I'm telling them the truth because they're so convinced by this extreme rhetoric. As Marty points out, the courts have done more to protect religious _expression_ in a wide variety of ways in the last few decades than any other form of speech, which I generally applaud as a good thing. But the fact is that most Americans know nothing at all about actual court rulings and get their information from less than reliable sources. And when their only source of information on this subject engages in inflated and wildly inaccurate rhetoric about the courts, it's small wonder that there is such a misperception out there. Ed Brayton ___ 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 Hostility to Religious Expression
The Ninth Circuit has the impression that the Supreme Court's precedents require discrimination against the religious speech of students. In Doe v. Madison School District (for which I wrote an amicus brief), a panel of the Ninth Circuit held that a school district could allow high school student graduation speakers chosen on basis of their grade point average to express themselves without censorship of religious or other content. The full 9th Circuit granted rehearing, vacating the panel decision, and then dismissed the case as moot because the student who had challenged the policy had already graduated -- and the Ninth Circuit did so even though the student had sued under a pseudonym and thus had control of whether or not to disclose that he or she had graduated. In later cases the Ninth Circuit held that school officials must censor such student speeches to remove objectionable religious content. I'd say that was Lee v. Weisman on steroids, but nevertheless the Ninth Circuit had the impression that such censorship was required by Supreme Court Establishment Clause doctrine. I must say that I am encouraged by Judge Alito's dissent in C.H. v. Oliva. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, November 04, 2005 9:15 AM To: Law Religion issues for Law Academics Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostilityto Religious 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
RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostility to Religious Expression
I agree with Marty that the result in Santa Fe -- the case that Alito allegedly discussed with Sen. Cornyn -- was to strike down speech that was government preferred or sponsored, because of the majoritarian nature of the election process and the school district's past practice. But some of the language of the Stevens majority opinion goes further and suggests that the school's endorsement of the speech was established by other factors as well, such as the mere fact that the prayer or religious speech was at a school-sponsored function . . . on school property, with the trappings of the school around it. This reasoning, taken alone, would require stopping even the valedictorian -- chosen neutrally on the basis of grades, with no school review of the speech's content -- from speaking religiously at graduation. That's what happened in the panel decision in the Madison case that Mark Scarberry describes (decided before Santa Fe, but on similar reasoning). It could also support the kind of argument in the Oliva case that Eugene suggests bothers Alito. I know that we have sharp disagreement on the list about whether the valedictorian's speech should be protected or forbidden. But the position that it should be protected -- should be treated as individual rather than state-sponsored speech -- couldn't colorably be said to be a major reversal of the Court's precedents, or a central threat to the rule against government-sponsored and government-preferred speech, could it? (Even if one disagrees with the position.) I think that senators should ask about this, but they should try to find out whether any reservations Alito has about the Santa Fe case go to the holding, or to some of the broader reasoning and dicta. Tom Berg, University of St. Thomas (Minnesota) --- Thomas C. Berg Professor of Law Co-Director, Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy University of St. Thomas School of Law MSL 400 -- 1000 La Salle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax: (651) 962-4996 E-mail: [EMAIL PROTECTED] --- -Original Message- From: Scarberry, Mark [mailto:[EMAIL PROTECTED] Sent: Friday, November 04, 2005 12:49 PM To: 'Law Religion issues for Law Academics' Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostility to Religious Expression The Ninth Circuit has the impression that the Supreme Court's precedents require discrimination against the religious speech of students. In Doe v. Madison School District (for which I wrote an amicus brief), a panel of the Ninth Circuit held that a school district could allow high school student graduation speakers chosen on basis of their grade point average to express themselves without censorship of religious or other content. The full 9th Circuit granted rehearing, vacating the panel decision, and then dismissed the case as moot because the student who had challenged the policy had already graduated -- and the Ninth Circuit did so even though the student had sued under a pseudonym and thus had control of whether or not to disclose that he or she had graduated. In later cases the Ninth Circuit held that school officials must censor such student speeches to remove objectionable religious content. I'd say that was Lee v. Weisman on steroids, but nevertheless the Ninth Circuit had the impression that such censorship was required by Supreme Court Establishment Clause doctrine. I must say that I am encouraged by Judge Alito's dissent in C.H. v. Oliva. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Friday, November 04, 2005 9:15 AM To: Law Religion issues for Law Academics Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostilityto Religious 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
