Salazar v. Buono - A Hypothetical

[Bhagwat, Ashutosh A.]

Regarding Pico, that's exactly why I think Pico is wrong -- because I'm dubious about such a right to object to removal of speech one supports.  Where would it come from?  Surely a listener's rights are derivative of a willing speaker?
 
The coercion point is more complicated.  I think that by suggesting to possible roles for the EC -- protecting state establishments and protecting individual liberty -- you ignore a third possibility, which is creating a structural barrier between the federal government and religion.  That third possibility has little to do with individual rights (which I doubt the EC is much about anyway).  My suggestion about standing was that perhaps this last, structural feature of the EC is often not justiciable.  Of course, as Sandy Levinson points out, that still leaves elected officials with an oath-bound obligation to conform themselves to the EC anyway.  But the lack of justiciability leaves open some space for disagreement between such officials and the Court in hard cases (like Salazar), where elected officials can prevail.  And maybe that's not so terrible, to have these issues discussed in a context other than rights talk.
 
Ash Bhagwat
Professor of Law
University of California, Hastings College of the Law
(415) 565-4675

________________________________

From: conlawprof-bounces at lists.ucla.edu on behalf of Rick Duncan
Sent: Fri 4/30/2010 11:40 AM
To: conlawprof at lists.ucla.edu
Subject: RE: Salazar v. Buono - A Hypothetical


Prof. Bhagwat makes some interesting points:

1. "I think this may be reading Pico more broadly than justified.  There is surely no general right to receive speech from the government of one's choice.  If there was, President Bush's speeches would have violated my rights pretty substantially, since I wanted to hear very different speeches.  Pico was a case about libraries (and even in that context, dubious in my view).  I think therefore that seeing Salazar as involving conflicting "rights" is a bit off the mark."


Pico was about school officials eliminating public school library books to appease dissenters who objected to the ideas in the books. This is different from removing books because they are worn or because they are taking up shelf space needed for other materials.

It was only a plurality opinion, but even if it is wrongly decided, it suggests that when govt officials remove books in a govt library (or a display in a public park?) under fire from those offended by the content of the govt speech, there is at least an arguable constitutional claim that the rights of the willing audience are as important (if not more important) than the rights of those who refuse to avert their eye and insterad seek to censor govt speech they dislike.

2. "The broader point, which has always troubled me about the coercion test, is that it may be conflating standing with the substantive Establishment Clause issue.  Perhaps the true answer is that the cross on public land does violate the EC, but no one has standing to challenge it because the injury imposed by the cross's existence is not substantial."


I don't think proponents of the coercion test mistake substance for standing. Their view
is that endorsement test and the Lemon test are judge-made tests without adequate support in text or history. If the EC is a federalism rule designed to prevent the Federal Govt from interfering (one way or the other) with state laws concerning religion, it is difficult to justify a rule banning passive displays in national parks at somehow constituting a forbidden endorsement of religion. And state displays are for state law to determine.

If there is some kind of individual liberty component of the EC, it should only be triggered by laws that force persons to participate in a religious activity or ritual, in a law that somehow constitutes an undue burden on liberty.

When you can avoid a religious display merely by averting your eye or walking a few steps out of your way, there is no EC liberty interest worthy of protection. Substantively as well as concerning standing to sue.

Cheers, Rick Duncan

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