Well ... Don't forget Rehnquist's play in the joints from Locke v. Davey,
also a Washington case, by the way. Te state's position seems like a perfectly
respectable old-time separationist view.
Randy Bezanson
U Iowa
Sent from my iPad
On Aug 14, 2011, at 11:24 PM, Volokh, Eugene
I can imagine at least two grounds on which the use of the park for the
baptism could be prohibited without raising serious legal question:
1. I suspect that the river or stream or pond in the park is not generally
open to the public for immersion or swimming -- and if so, prohibiting the
Similar issues were raised-albeit before public forum doctrine was very
developed-and both the Third and DC Circuits held there was no violation of the
EC in allowing a papal mass in a public park. And the cert grant in Fowler v
RI(1952) was to answer the question of whether a religious event
Big surprise that I disagree with Marty on the Bronx Household of Faith case.
The decision should stand. There was no targeting a la Lukumi. Instead, you
have the question in the big picture whether public institutions must host
weekly worship services for a religious group that turns the
May members of the church group join in prayer during the picnic/barbecue?
It's hard to see why baptism would be different (from the state's point of
view re: devoting public resources to worship), unless Marty is correct that
the body of water is not open for swimming or wading (and no one on the
Not sure how you can disagree with me, Marci, when I haven't yet articulated
my views! (I've only predicted that the current Court would rule against
the State -- which I assume most here would agree is not a very
controversial prognostication.)
On the merits, two questions: Is it an EC
Now that all the briefs are in except Doug's reply -- see
http://www.americanbar.org/publications/preview_home/10-553.html -- I was
wondering if anyone has any reactions, in particular whether anyone's views
have changed by virtue of the briefs. I haven't seen much discussion online
lately.
I have a brief and basically non-substantive post up on Prawfsblawg today about
the Law and Religion Professors brief. Also, the Northwestern University Law
Review Colloquy will be running several pieces on the case; they should be up
on the web site by around the start of Term. I have read
I'm not forgetting that, but my sense is that Locke treated a
financial subsidy for the benefit of listeners as quite different from the
Widmar et al. scenario of access to government property for speakers and
listeners. It certainly didn't say anything to suggest that it was
I suppose I should have written religious worship services *standing alone*.
If I recall correctly, the premise of the CTA2 decision in *Bronx Household
* is that if -- unlike in *Widmar* -- a state generally treats religious
expression and nonreligious expression equally, and imposes a
Paul's Prawfsblawg post is, I think, fairly described as trying to suggest
that the Corbin/Griffin amicus brief (which he praises) does not fairly
reflect the view of most professors who teach Law and Religion, and that,
instead, there is a very different and *nearly unanimous consensus* about
You are quite right about Locke, Eugene, but I'm not sure that that settles the
matter. Washington justified its exclusion of those studying for the ministry
on grounds of its own constitutional guarantee of separation of church and
state, and the Court accepted that this fell within the
I'm certainly happy to plead guilty to overenthusiastic writing; it's been
known to happen on blogs, although I try to avoid it. I would note, though,
that the position taken in the brief I mention is not just that the ministerial
exception raises difficulties of the kinds Marty mentions
That's true -- that there should be no ministerial exemption at all is
probably not the position of *most* professors who teach and work directly
in law and religion. (Although I wonder how many of them would conclude
that (i) the vast array of statutory exemptions (including RFRA), plus (ii)
Apologies to Marty for overreading his reference to Lukumi. The facts of
Bronx Household indicate that the entire school is transformed into a
worship center every Sunday. Students entering to get their homework or for
any
other reason would be confused regarding their school's support
Mea culpa!
From: lederman.ma...@gmail.com
Date: Mon, 15 Aug 2011 12:09:10 -0400
Subject: Re: Hosanna-Tabor and the Ministerial Exception
To: religionlaw@lists.ucla.edu
That's true -- that there should be no ministerial exemption at all is probably
not the position of most professors who
Preliminarily, let me say that I sincerely hope there is a wide variety of
views among law professors on this issue, and most every other issue in our
field.
The issue in the Hosanna Tabor in my view is not whether there will be a
ministerial exception, but, as Doug puts it, where to
I've never seen the force of concerns about confusion about
government endorsement created by equal access proposals, especially when
there's time to explain things to the confused people. Schools' job is to
dispel confusion among students about various things. They have lots
I suppose I'm somewhere between Marty and Eugene on this issue. I think Eugene
is correct that Widmar and Good News Club largely resolve this issue - at least
an appellate court would be justified in concluding that they controlled the
question.
The distinction that Marty draws, however, is a
Well, the state constitutional defense for the exclusion was
raised in Widmar as well and rejected; and the worship-nonworship line was
rejected, too. So I don't think the play-in-the-joints argument is consistent
with Widmar.
Davey's response to Rosenberger
And how would the school explain to six-year-old students why the school is
open to such uses only on Sundays; and why, just coincidently, the
overwhelmingly predominant uses of the school are for Christian religious
services?
Don't get me wrong -- this doesn't mean that I necessary think there
What if, as is likely the case, New York's purpose in opening its schools
for private uses on Sundays is not to encourage a diversity of views from
private speakers, but instead simply to generate income, whether the uses
are for speech or otherwise?
On Mon, Aug 15, 2011 at 12:43 PM, Volokh,
Isn't the kids will get the wrong impression defense explicitly rejected in
Good News -though(I don't have access to the decision)perhaps only by a
plurality.
Marc
From: Volokh, Eugene [mailto:vol...@law.ucla.edu]
Sent: Monday, August 15, 2011 12:43 PM
To: Law Religion issues for Law Academics
The rule in bronx household is that schools can be rented whenever not in use.
They are less frequently in use on sundays, but lots of schools can be rented
on Saturday or Friday nights.
Marc
From: Marty Lederman [mailto:lederman.ma...@gmail.com]
Sent: Monday, August 15, 2011 12:54 PM
To: Law
thanks, Marc. Sorry about that -- the opinion states that the fact
that school
facilities are *principally* available for public use on Sundays* *results
in an unintended bias in favor of Christian religions.
On Mon, Aug 15, 2011 at 1:00 PM, Marc Stern ste...@ajc.org wrote:
The rule in bronx
The 2d Cir does not disagree with the equal access point, but rather says
that the School Dist is prohibiting an activity, not expression per se. In
fact, prayer, religious instruction, expression of devotion to God, and the
singing of hymns are not prohibited. What is excluded is
The post quoted below was about the baptism-in-the-park
scenario – in which the parks are treated by traditional public forum doctrine
as being opened to encourage a diversity of views – not about the school
scenario. Where the school scenario fits is hard to tell, given the
Lee v. Weisman was not about confusion. It was about actual government
sponsorship.
Douglas Laycock
Robert E. Scott Distinguished Professor of Law
University of Virginia Law School
580 Massie Road
Charlottesville, VA 22903
434-243-8546
From: religionlaw-boun...@lists.ucla.edu
While school facilities may be used on Sunday most often by Christian religions
for worship services, they can and are used by other faiths on Sunday for
religious purposes other than worship. My synagogue, for example, used the
local high school on Sunday for religious school classes for many
I could have sworn Lee was about endorsement (characterized by J. Kennedy
as coercion) and whether the listener felt disenfranchised by the govt's
apparent endorsement of religion (whether the government intended to endorse
it or not).
Marci
In a message dated 8/15/2011 1:35:48 P.M.
I’m with Doug on this: It’s hard for the school to honestly
disclaim endorsement and preferential treatment when it deliberately invites a
member of the clergy, precisely because he is a member of the clergy. It’s
much easier to make clear to people that there is no
The two decisions in which possible erroneous endorsements play a role are
Pinette and Good News(and maybe the ten commandment cases).In Lee,the problem
was not about a mistake about the existence of endorsement, but what the
meaning of the school's action in including a prayer at graduation.
I doubt that a typical six-year-old is going to much notice
this (I say this as a father of a six-year-old and a seven-year-old) --
especially once he's told that everyone is allowed to access the school
equally, and that what he sees at the school those days comes from the
As I said, I'm not foreclosing the possibility that a sufficient disclaimer
could prevent an EC problem. And I'd like to think something such as Eugene
proposes would do the trick. But I remain somewhat skeptical, for two
reasons:
1. First, I'm happy to have been wrong in assuming a formal
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