Salazar v. Buono - A Hypothetical
nebraskalawprof at yahoo.com
Fri Apr 30 10:40:03 PDT 2010
Chip argues that my Free Ex views are inconsistent with my EC views:
On Rick's theory of "willing listeners," one wonders if government could
ever remove a religious display, especially a highly popular one. This
would all the more true if objectors to the display were few in number
(perhaps because few objected, but perhaps because people reasonably
fear reprisals for being known objectors). So it would just be (vocal)
majority rules, a notion that Rick totally rejects in the free exercise
context, where he defends exemptions against general rules produced by
majoritarian political processes. And Rick's theory seems quite
inconsistent with the notion that the government has no "first amendment
rights," as a speaker or anything else.
Actually, my view is that a substantial burden (coercion) test should be applied to
both Free Ex and EC plaintiffs.
Perhaps inspired by Chip's seminal article about how substantial burdens are where
rights begin (an article I often refer my students too), I would apply a coercion test
to those who object under the EC to governmental displays with religious significance.
Just as a conservative Christian can not enjoin a gay pride display in a public
school as a violation of his free exercise of religion (since he can avert his eye,
there is no substantial burden), by the same token one who objects to a religious
display has no substantial burden under the EC right to be free of coercive religious displays, since he also may avert his eye.
If the state requires citizens to bow down before a statue of Baal under penalty of law,
the EC protects them from this kind of coercion to worship or view the display.
I support the government speech doctrine , but again without regard to who is offended
or whether the government speech s secular or religious.
I would decide the gay pride and nativity scene cases the same way.
If removal-under-fire of the gay pride display is unconstitutional under Pico and the right
of a willing audience to receive speech, so too is the removal-under-fire of the nativity
So, although Chip's attempt to support the endorsement test and its political insider/outsider analysis is a worthy one, ultimately it fails because it is a neutrality test that often produces non-neutral results and which creates as many or more political outsiders as it eliminates.
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 Fri, 4/30/10, Ira (Chip) Lupu <iclupu at law.gwu.edu> wrote:
From: Ira (Chip) Lupu <iclupu at law.gwu.edu>
Subject: Re: Salazar v. Buono - A Hypothetical
To: "Rick Duncan" <nebraskalawprof at yahoo.com>, conlawprof at lists.ucla.edu
Date: Friday, April 30, 2010, 10:05 AM
On Rick's theory of "willing listeners," one wonders if government could ever remove a religious display, especially a highly popular one. This would all the more true if objectors to the display were few in number (perhaps because few objected, but perhaps because people reasonably fear reprisals for being known objectors). So it would just be (vocal) majority rules, a notion that Rick totally rejects in the free exercise context, where he defends exemptions against general rules produced by majoritarian political processes. And Rick's theory seems quite inconsistent with the notion that the government has no "first amendment rights," as a speaker or anything else.
But I must say I'm glad that Rick is not latching on to Breyer's opinion in Van Orden as a source for the anti-removal argument -- Breyer's underlying theory is that removal of the Ten Commandments monument in Austin would be divisive, and I expect that most of the people on this list who are bothered by the prospect of removal of the cross do not subscribe to the anti-divisiveness theory of the Establishment Clause. So you do need a different explanation for why removal implicates any constitutional interests. I'd say to Rick, nice try, but it doesn't work, primarily because it completely undoes any restraint on religious speech by the government (e.g., a declaration that Nebraska is a Christian state -- if that were to pass the state legislature, many people would be deeply offended if a court invalidated -- removed -- the declaration.)
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
My SSRN papers are here:
---- Original message ----
>Date: Fri, 30 Apr 2010 08:42:16 -0700 (PDT)
>From: conlawprof-bounces at lists.ucla.edu (on behalf of Rick Duncan <nebraskalawprof at yahoo.com>)
>Subject: Re: Salazar v. Buono - A Hypothetical
>To: conlawprof at lists.ucla.edu
> Chip makes a number of good points, but I am grading
> only have time to respond to one right now. He says:
> "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
> This is why I prefer to think of those "offended" at
> the removal of
> a religious display as a willing audience for the
> display and thus
> bearers of possible free speech rights. This free
> speech interest
> should be taken into account when deciding whether
> to allow a
> casual passerby offended by a religious display the
> right to cleanse
> the display from the public square. Those offended
> by desegregation
> of public schools have no constitutional right to
> segregation, but when a display
> is removed because of its religious significance,
> the willing audience has
> at least a possible free speech "right to receive"
> interest such as suggested by the plurality
> in Pico.
> Again, assume a public school puts up both a Gay
> Pride display and
> a Nativity Display in December of 2010. Parents
> complain to the school board about both displays,
> and the school board orders that both be removed.
> Do the students who are a willing audience for the
> gay pride display have
> at least a possibly valid argument that their free
> speech "right to receive"
> the gay pride display's expression (their right to
> be a willing audience for the display)
> has been violated by the school board's
> removal-under-fire of the display?
> If your answer is yes, then the students who wished
> to be a willing audience
> for the censored Nativity Display have a similar
> right to receive speech interest.
> Before we are too quick to allow a dissenter, who
> could have averted his eye, to
> deny free speech rights to others, we should think
> long and hard about this.
> And in terms of the reasonable observer viewing a
> religious display as creating
> political insiders and outsiders under the
> endorsement test, remember what
> Justice Thomas said about this in Good News:
> "Finally, even if we were to inquire into the minds
> of schoolchildren in this case, we cannot say the
> danger that children would misperceive the
> endorsement of religion is any greater than the
> danger that they would perceive a hostility toward
> the religious viewpoint if the Club were excluded
> from the public forum."
> When religious displays are removed or unwelcome in
> a public square open
> to all sorts of secular displays, many reasonable
> persons perceive this as
> a government message of disapproval of religion, as
> sending the message that religious people are
> political outsiders and secular people are political
> Frankly, I think the best we can say is that the
> Court's doctrines concerning passive
> religious displays are confusing, unsettled, and
> often conflicting. There is no "right"
> answer here, and people on both sides of the
> controversy can claim to be outsiders harmed by
> either the erection or the removal of passive public
> Cheers, Rick Duncan
> 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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