Public Displays and Burdens on Liberty

Rick Duncan nebraskalawprof at yahoo.com
Sat Apr 24 13:58:15 PDT 2010


Here are two cases:

Case One

Public School puts up a gay pride display. Dissenters complain
and the school board orders the school to take down the display.

Many of you will argue that the dissenters are mere hecklers who have
no right to impose their view of what is offensive on those in the community
who are a willing audience for the display. Many of you would advise
the dissenters to avert their eyes and would argue that those who wish
to view the gay pride display have suffered a serious injury to their right
to receive the gay pride message contained in the govt display.

Indeed, many of you would probably cite Pico and argue that it violates
the free speech rights of the willing audience for the school board to 
appease the hecklers by removing the display under fire.

Case Two

Same facts except the display is a Nativity display put up by the public school
to acknowledge that many students are celebrating Christmas.

Hecklers show up and say they are offended by the nativity display and its
recognition of a religious holiday.

Now many of you will argue that the hecklers are not hecklers but citizens who 
have been seriously harmed by the display that offends them. They should not 
have to avert their eyes; they have a constitutional right to enjoin the display.

The students who wish to see the display have no right under Pico
or the First Amendment to receive this forbidden message.

Now you say the Establishment Clause requires this remarkable turnabout
in terms of whose interests are trivial and whose are worthy of protection.

But the EC does not require this--only the judicially-created endorsement test somehow transfigures the hecklers of Case One into the constitutional heroes of Case Two (and the victorious recipients of the govt's gay pride message of Case One into the losing non-rights-bearers of Case Two).

When the endorsement test cleanses the public square of religious displays it 
takes real speech rights away from a willing audience in order to "protect" those who
could easily protect themselves merely by averting their eyes.

By the way, now that Alito has replaced O'Connor, if I were a betting man
I would bet on a 5-4 victory for the Cross Memorial and a nice majority opinion
upholding most passive displays. 

Perhaps someone should put up a memorial for the endorsement test 
and its non-neutral (and hostile) treatment of passive religious displays.

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902


"And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill)

--- On Sat, 4/24/10, Finkelman, Paul <paul.finkelman at albanylaw.edu> <Paul.Finkelman at albanylaw.edu> wrote:

From: Finkelman, Paul <paul.finkelman at albanylaw.edu> <Paul.Finkelman at albanylaw.edu>
Subject: RE: FW: descriptive scholarly accounts of religious identityandjudicial behav...
To: "Rick Duncan" <nebraskalawprof at yahoo.com>, "conlawprof at lists.ucla.edu" <conlawprof at lists.ucla.edu>
Date: Saturday, April 24, 2010, 12:40 PM


 
 




The establishment clause does not say "Congress shall make no law
actively respecting an establishment of Religion."  Or did I miss read something somewhere?  

 
There is nothing "passive" about using my tax dollars to support your religious beliefs.  This was Madison's basic point in his remonstrance to the state of Virginia and it still holds true. 
 If is on public land it is tax money. What about that is so hard to see?  

 
Here is what I don't get. Why are you so determined to use the government to proclaim your faith in God?  If you were serious about you political views and your religious views, you would be demanding that
 the government stop exploiting your faith for political purposes.  Alternatively, you really want to use the government promulgate your faith.  That is what the esablishement clause prohibits, whether it is active or passive. 

 
*************************************************

Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208
 
518-445-3386 (p)
518-445-3363 (f)
 
paul.finkelman at albanylaw.edu
www.paulfinkelman.com
*************************************************







From: conlawprof-bounces at lists.ucla.edu [conlawprof-bounces at lists.ucla.edu] On Behalf Of Rick Duncan [nebraskalawprof at yahoo.com]

Sent: Saturday, April 24, 2010 2:00 PM

To: conlawprof at lists.ucla.edu

Subject: RE: FW: descriptive scholarly accounts of religious identityandjudicial behav...










Paul says:"The problem with Rick's argument is that in "running to defend" religious arguments he runs smack into the First Amendment which says that the monument should never have
 been up there in the first place."



But of course the Establishment Clause says no such thing about passive religious displays being forbidden merely to protect those who choose to heckle religious displays rather than avert their eyes. The wrongdoer is the judicially-created endorsement test,
 not the Establishment Clause.



Just as the willing audience for a gay pride display in a public school suffer a free

speech injury when govt tears it down to appease hecklers, the willing audience

for a war memorial or holiday display suffers a free speech injury when religious

displays are torn down to appease hecklers. In both case, those who dislike

the displays could have merely averted their eyes rather than deprive the willing

audience of their right to view the displays.



The problem with the endorsement test is it takes liberty from one group to appease

another group's mere interest in not being offended. The heckler's suffer no serious harm to any liberty interest (only the slight burden of averting their eyes), but those who are deprived of a neutral public square, when religious displays are cleansed from
 a

public square open to all other displays, suffer a serious burden on their equal right

to be a willing audience for govt displays they would like to see.



Cheers, Rick



 "And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill)



--- On Sat, 4/24/10, Finkelman, Paul <paul.finkelman at albanylaw.edu> <Paul.Finkelman at albanylaw.edu> wrote:




From: Finkelman, Paul <paul.finkelman at albanylaw.edu> <Paul.Finkelman at albanylaw.edu>

Subject: RE: FW: descriptive scholarly accounts of religious identityandjudicial behav...

To: "Rick Duncan" <nebraskalawprof at yahoo.com>, "Hamilton02 at aol.com" <Hamilton02 at aol.com>, "conlawprof at lists.ucla.edu" <conlawprof at lists.ucla.edu>

Date: Saturday, April 24, 2010, 10:42 AM



#yiv913483031 #yiv351727281 #yiv1950540598 P {
MARGIN-TOP:0px;MARGIN-BOTTOM:0px;}

The problem with Rick's argument is that in "running to defend" religious arguments he runs smack into the First Amendment which says that the monument should never have been up there in the
 first place.  

 
 
*************************************************

Paul Finkelman, Ph.D.
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY 12208
 
518-445-3386 (p)
518-445-3363 (f)
 
paul.finkelman at albanylaw.edu
www.paulfinkelman.com
*************************************************







From: Rick Duncan [nebraskalawprof at yahoo.com]

Sent: Saturday, April 24, 2010 11:59 AM

To: Hamilton02 at aol.com; conlawprof at lists.ucla.edu; Finkelman, Paul <paul.finkelman at albanylaw.edu>

Subject: RE: FW: descriptive scholarly accounts of religious identityandjudicial behav...










Paul Finkelman writes:




To Rick's comment below, we might respond:  "No one's liberty is harmed by remoing a religous display from public property.  If you want the monument then put it up on your
 property; you have liberty to do that.  In fact, Rick, my liberty is harmed when you take my tax dollars and the political power of my country, and use it to support
anyone's religion, whether it is yours or mine.  BUt, if you put the monument on your land than it affects no one's liberty.  I am simply don't comprehend the argument that
your religious liberty depends on using public land and public money to promote your faith.  This is precisely what the First Amendment is designed to prevent.


 
More to the point, why would anyone who takes religion seriously
want to have the government putting up religious monuments?  Do you want your religous values subject to who wins an election?




Suppose a group of dissenters attacked a "gay pride" display put up by school authorities in a public school. Under pressure from the dissenters, the school board ordered that the display be taken down.



Would Paul view this decision-under-fire as a good one, protecting the right of the dissenters not to be offended by controversial govt displays? Or as amounting to a heckler's veto denying those who wish to see the display their right to be a willing audience
 for the governmental display?



As to Paul's second question, I don't particularly want govt to put up any

displays, religious or secular. I prefer a quiet government.



But when someone attempts to cleanse one of many govt displays from the public square precisely because it has religious significance,

I will rush to defend it because if we care about neutrality in the public square

religious displays are no less appropriate than secular displays. If we are going to decorate

the public square, we should do so with a thousand points of light (both secular and religious) not with 500 points of secular light. That is not neutral. It sends the message that religious holidays and symbols are not part of our public culture, which of
 course is

simply neither neutral nor true.



Rick Duncan

cleansed from the public square 


Rick Duncan 

Welpton Professor of Law 

University of Nebraska College of Law 

Lincoln, NE 68583-0902






"And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill)






























 



      
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