Death to Jurors!

[Marie A. Failinger]

On the public forum question, as Art points out, the trial was already
over in the Hmong burning case.  The duty of the judge to exclude
behavior which might be enough to impair the impartial judgment of
the jury (whether visible praying, burning, wearing a button) makes sense
to me, although it does involve a causal calculation about whether jurors
are likely to be swayed (actual lack of impartiality) or whether they are
likely to be perceived as being swayed (the appearance of impartiality).

But when the jury (or decision-maker) is not around, (Sandy and others,)
why does the publicly owned courtroom become a nonpublic forum, subject to
the will of the
propertyowner, the government? If someone wants to conduct a religious
ceremony in a courtroom (in such as manner as not to give the
impression of government endorsement), and it's not a big burden TPM-wise
(i.e.,it's during hours the court is open and not in use, doesn't disrupt
other courtrooms, doesn't cause a security problem or a mess), why
shouldn't she?  This isn't, after all, like the government office cases
where workers' efficiency is disrupted--there's nobody in there lots of
thetime in some courtrooms! If the most effective place (in the view of the
religiousadherent) is the courtroom, why not?  Importing public forum analysis into
free exercise cases seems like an instance of "bad law makes hard cases"
(when they're easy. . .)

Or perhaps there is more. . .do we reach for some instinct that the
courtroom is sacred space, where silence and decorum are obligatory, even
when no one is there?


Marie A. Failinger
Hamline University School of Law
mfailing at piper.hamline.edu