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