Possibilities after Santa Fe

Lederman, Marty Marty.Lederman at USDOJ.GOV
Tue Jun 20 19:08:35 PDT 2000

I don't think I disagree with Prof. Berg.  If the criteria for the state's decisions are neutral (i.e., objective) and nondiscretionary -- such as subject-matter constraints (e.g., the speech must concern football), a "no criticism of fellow students" rule, perhaps even a prohibition on the use of profanity (which Justice Brennan in Fraser distinguished from a viewpoint-based discrimination) -- religious speech falling within the permitted categories should not be excluded, or viewed as "least favored" speech.  The problem is that the criteria rarely are so objective (at least in the student-expression context).  Much more frequently the criteria are analogous to the "appropriateness" standard hypothesized by Prof. Friedman, or an "advances the public welfare" standard, as in the 5th Circuit's recent Campbell v. St. Tammany's case.  Where the state is permitted such discretion, and is required or permitted to evaluate the "bona fides," or value, or appropriateness, of speech or of speakers, the Establishment Clause concerns obviously will be great when such criteria are to be applied to religious expression and to an array of religious organizations and.or speakers.  It would, at the very least, create the potential for serious Larson, sect-discrimination, problems.  (And, the discretion/evaluation problem cannot be eliminated by granting *all* religious speech an automatic thumbs-up, because then the Free Speech clause (and, probably, the EC) is violated.  See, e.g., Heffron v. ISKCON; Prince.)  Justice Harlan explained it best in his Walz concurrence, 397 U.S. at 698-99:  "Obviously the more discriminating and complicated the basis of classification . . . --even a neutral one--the greater the potential for state involvement in evaluating the character of the organizations."  And as Justice Stevens suggested yesterday, such state evaluation (not to mention comparison) of religious organizations and religious expression is one of the principal vices that the EC forbids.

Marty Lederman (in my private capacity)

-----Original Message-----
From: Thomas C. Berg [mailto:tcberg at SAMFORD.EDU]
Sent: Tuesday, June 20, 2000 3:19 PM
To: RELIGIONLAW at listserv.ucla.edu@inetgw2
Subject: Re: Possibilities after Santa Fe

On Tue, 20 Jun 2000 14:03:13 -0400 "Lederman, Marty"
<Marty.Lederman at USDOJ.GOV> wrote:

>  We can all think of obvious,
content-based distinctions that the school would make --
distinctions that could not be made in the true fo! > ra
cases such as Widmar, Lamb's Chapel, et al.  As long as
it's the case that the school reserves the right to draw
such distinctions -- to decide what's in bounds and what's
not (sorry about the football metaphor) -- then the speech
is, in part, attributable to the school, in that it has the
school's imprimatur as "appropriate," in contrast to other
speech that's not deemed appropriate.  (That's why Stevens'
cite to Hazelwood was apt.)  And, under such a policy, if
the school deems a student's religious speech or prayer
"approrpriate," there's a serious Establishment Clause
problem, even if the school doesn't expressly "encourage"
religious content. > >

I think we had this discussion at least once before.  Marty
seems to be suggesting a "least favored nation" principle
for religious speech:  if the school disallows *any* speech
because of content, then it has to disallow religious
speech too, because to allow it is an endorsement.  I think
that there is lots of speech that the school could forbid
wihout thereby having to forbid all religious speech too.
It should be able to forbid profanity, abusive attacks on
any person, even speech that is not relevant to the
setting.  That it forbids speech in such categories does
not mean it must also forbid speech that doesn't fit in
those categories just because the speech is religious.

Suppose, for example, the criterion of relevance for the
football game speech is tighter and more specific than
"any appropriate speech," as in Professor Friedman's hypo
(and suppose also that we get rid of the religious-sounding
term "solemnizing" from the Santa Fe policy).  Suppose, for
example, the school district says the speaker should give
"a speech promoting sportsmanship." I would think that the
individual speaker in that case could choose to give a
speech supporting sportsmanship from a religious viewpoint
("God commands us to play fair") or a secular one ("We
should respect each other and play fair").  (Provided, of
course, that the choice is really made by the student, and
not influenced by the majority vote, as Santa Fe found.)
The fact that the school limits the speeches to those
promoting sportsmanship does not mean it has to excise
speech that promotes sportsmanship from a religious
viewpoint.  What the school is approving is the exhortation
to sportsmanship, not the religious viewpoint.

Cites for this argument:

(1) Lamb's Chapel (and implicitly Rosenberger), which says
that even in a nonpublic forum restricted to a certain
topic such as "social or civic" matters, the government
should not ban speech on that topic that addresses it from
a religious viewpoint.

(2) The developing line of aid cases, which say that when
the government provides aid for a specific secular purpose,
it need not exclude religious institutions that serve that
purpose: in effect, the government is endorsing the secular
goal, not the religious entity that benefits.

(3) Kennedy's concurrence in Mergens:  "[A] public high
school 'endorses' a religious club, in a common-sense use
of the term, if the club happens to be one of many
activities that the school permits students to choose in
order to further the development of their intellect and
character. . . .  But no constitutional violation occurs
[despite this sort of 'endorsement'] if the school's action
is based upon a recognition of the fact that membership in
a religious club is one of many permissible ways for a
student to further his or her own personal enrichment."

Thomas C. Berg, Cumberland Law School Samford
University Birmingham, AL 35229
(205)726-2415 Email: tcberg at samford.edu

More information about the Religionlaw mailing list