Salazar v. Buono - A Hypothetical

[Ira (Chip) Lupu]

This issue of private vs. public (governmental) responsibility for religious speech occurs repeatedly.   In Lynch, the city's Christmas display was on private land.  In Allegheny County, the creche display had been contributed by the Holy Names Society, but it was on display in the courthouse.  Santa Fe of course recreates the problem, as does every public high school valedictorian who wishes to lead the class in prayer or utter religious sentiments.  Think about license plates with privately chosen logos which the state must approve (e.g., St. John's Church, with a drawing of a steeple, including a cross.) In a public forum, the speech is properly attributed to private parties (Widmar, etc.), though unattended displays can raise issues of misattribution (Pinette).  But we know from Summum that permanent, unattended displays on public land are government speech.  So the cross in the Mojave National Preserve was government speech, whether or not private parties placed it ther!
 e.!
  And we know the government refused to make the Preserve a forum.  So if -- before the transfer -- a reasonable observer (I hate this test, but it's what we're playing with for now) would perceive the cross in the Preserve as creating religious insiders and outsiders, the government should lose and the cross should come down. Offense at the removal may be very disturbing to people -- like flag-burning or cartoons of Mohammmed - but (Breyer in Van Orden notwithstanding) court-ordered removal as a remedy for constitutional violation is NOT a matter of constitutional significance -- how can it possibly be?  Think desegregation. 

So the only question reasonably left in Salazar is the one on remand -- whether the transfer to the VFW absolves the government of responsibility for the speech.  That, to me, is much closer than the pre-transfer question.  Reasonable people can differ on whether the transfer cures the problem,  and they can do so without recrimination and ill will.  

By the way, Claudia Haupt, a Fellow here at GW, has a very good article, forthcoming in the Tulane L. Rev,  on this general problem of when religious speech is or is not properly attributed to the government.  I don't know if it's on SSRN yet.

Chip

Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
My SSRN papers are here:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg


---- Original message ----
>Date: Thu, 29 Apr 2010 19:34:52 -0400
>From: conlawprof-bounces at lists.ucla.edu (on behalf of Kermit Roosevelt <krooseve at law.upenn.edu>)
>Subject: Re: Salazar v. Buono - A Hypothetical  
>To: Christopher Lund <ed9034 at wayne.edu>
>Cc: "conlawprof at lists.ucla.edu" <conlawprof at lists.ucla.edu>
>
>Santa fe v. Doe would suggest not, right?
>
>
>Kermit Roosevelt
>Professor of Law
>University of Pennsylvania Law School
>3400 Chestnut St.
>Philadelphia PA 19104
>215.746.8775
>
>On Apr 29, 2010, at 5:59 PM, "Christopher Lund" <ed9034 at wayne.edu>  
>wrote:
>
>> So I'm reading the opinion and interested in Justice Alito's  
>> conclusion
>> that the land-transfer statute properly cures any potential  
>> Establishment
>> Clause problem.
>>
>> Here's a hypothetical I wanted to raise for the list.  (I hope it's  
>> apt --
>> I'm trying to isolate the privatization issue and put it in another
>> context -- but if it's not, I'm sure someone will tell me.)
>>
>> A public school district asks for student volunteers to lead prayers  
>> in
>> the classroom.  The prayers are for our soldiers abroad in Iraq and
>> Afghanistan.  Let's say two students, Samantha and Charlie,  
>> volunteer and
>> lead those prayers.  There's a lawsuit.  The practice gets struck down
>> under Engle v. Vitale, Treen v. Karen B., Lee v. Weisman, and so  
>> on.  The
>> school says it has a plan to fix the problem.  It says that it will no
>> longer ask Samantha and Charlie to lead prayers.  Instead, Samantha  
>> and
>> Charlie will simply have a minute to speak however they want  
>> relating to
>> the wars in Iraq and Afghanistan.  Samantha and Charlie, now free to  
>> say
>> whatever they want, say that they will continue to offer prayers.
>>
>> Has the school district fixed the problem?
>>
>> Best,
>> Chris
>>
>> ___________________________
>> Christopher C. Lund
>> Assistant Professor of Law
>> Wayne State University Law School
>> 471 West Palmer St.
>> Detroit, MI  48202
>> lund at wayne.edu
>> (313) 577-4046 (phone)
>> (313) 577-9016 (fax)
>> Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
>>
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>_______________________________________________
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>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.