RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostilityto Religious Expression
If we may, Tom, Let's move away from what Alito may or may not have said about Santa Fe and focus on C.H. v. Oliva -- where we know exactly what he said. Suppose in a first or second grade class, children drew pictures with descriptions to be hung on the wall of the classroom. The class was overwhelmingly Christian and several children drew religious pictures with first grade or second grade messages -- say We all love Jesus or Jesus lets you into heaven. Would (or should) a teacher have the authority to try to limit these messages in any way. Or is this a non-public forum and all viewpoint discrimination must be subjected to strict scrutiny -- which would not justify the teacher's intervention, if I understand Alito's opinion correctly. Alan Brownstein -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C. Sent: Friday, November 04, 2005 12:14 PM To: 'Law Religion issues for Law Academics' Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostilityto 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
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 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
RE: Alito Views SCOTUS Doctrine as Giving Impression of Hostilityto Religious Expression
I agree with Eugene that Judge Alito seems to be a strong defender of the free speech rights of private religious speakers. That is a strong pont in his favor. But I think Marty is right that the Court has already made great strides toward protecting private religious _expression_. There is still ground to be covered here (Oliva and Davey are examples), but one of the great civil liberties victories of my lifetime has been the Court's acceptance of equal access for private religious speakers. But Judge Alito, like Justice Scalia, may also believe that the Lemon testand the endorsement testhave gonetoo far in the direction of hostility towardmere government recognition of religion and religious holidays. If the state can celebrate gay pride week, and Cinco de Mayo, and Earth Day, andpork producers day on the public square, then why can't it alsocelebrate Christmas or Chanukah or Ramadan with a passive dispaly in the public parks or a party at school? Rick Duncan "Volokh, Eugene" [EMAIL PROTECTED] wrote: I suspect that Alito's response was in large part a reaction totwo cases that he heard on the Third Circuit: Child EvangelismFellowship 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 areeasily duped by "unrelenting rhetoric we hear from the right" --apparently argued that the Establishment Clause required governmententities to discriminate against private religious speech (i.e.,religious speech by students or by private organizations, not religiousspeech by school officials in their official capacity) in schools. InOliva, the lower court seemed to at least partly endorse this view,though its comments are a little cryptic. (And of course in Oliva, theThird Circuit ultimately concluded tha! t the school was entitled todiscriminate against the religious speech, though it didn't hold thatsuch discrimination was required.) I haven't read the briefs in thosecases, but if I were the government lawyer making that argument, I'dcertainly have something to point to in the Court's decisions -- forinstance, the concurrences in Pinette, which seem to suggest that theEstablishment Clause sometimes may require discrimination againstprivate religious speech, and even the plurality in Pinette, which saysthat compliance with the Establishment Clause is a compelling interestjustifying what would otherwise be a violation of the Free Speech Clause(rather than that compliance with the Free Speech Clause is an adequatejustification for what would otherwise be a violation of theEstablishment Clause).My guess is that if Alito did say that the Court's doctrine"really gives the impression of hostility to religious speech andreli! gious _expression_" and that "the court had erred by going too far inprohibiting government support for religion at the risk of hamperingindividual _expression_ of religion" -- I say "if" because my sense isthat it's hard to be confident of the accuracy of such second-handquotes -- he was likely alluding to what he saw while participating inthose cases: The Court's doctrine has created, among many governmentofficials (as well as among critics of those officials) an impressionthat private religious speech is in some measure constitutionallydisfavored, and that private religious speech can be and perhaps must besubject to special restrictions. And that strikes me as quite asensible criticism of the Court's doctrine, though of course there arealso quite sensible defenses of the Court's doctrine.Eugene-Original Message-From: [EMAIL PROTECTED][mailto:[EMAIL PROTECTED] On Behalf O! f Ed BraytonSent: Friday, November 04, 2005 8:42 AMTo: 'Law Religion issues for Law Academics'Subject: RE: Alito Views SCOTUS Doctrine as Giving Impression ofHostilityto Religious _expression_-Original Message-From: [EMAIL PROTECTED][mailto:[EMAIL PROTECTED] On Behalf Of FrancisBeckwithSent: Friday, November 04, 2005 9:21 AMTo: Law Religion issues for Law AcademicsSubject: Re: Alito Views SCOTUS Doctrine as Giving Impression ofHostility to Religious _expression_I don't want to be too picky here, but Alito is saying "impression ofhostility," not necessarily "hostility." So, in a sense, he does notdisagree with Marty. Alito says "impression," and Marty says"misperception." A misperception is in fact an impression, but aninaccurate one.I do think that Alito is correct that there is an impression ofhostility. Now whether that impression is justified is ever or alwaysjustified is another question. But clearly Alito is justified in sayingthat many ordinary people in fact have that impression.I'm going to suggest that a large part of this misconception is theresult of the almost unrelenting rhetoric we hear from the rightclaiming that the courts are hostile to religion, want to stamp it outfrom society, have "thrown God out of the schools" and so forth. I'vehad countless
