Possibilities after Santa Fe

[Michael deHaven Newsom]

No consensus here.  Unless and until one analyzes the practical implications of
the case and the various hypotheticals on majority and minority religion, quite
apart from "form" issues such as elections or lotteries or "neutral" standards,
the constitutional objection in Santa Fe still remains, and I think that the
Supremes would so hold.  I fear that religious majoritarians will continue to
look for strategems and artifices that will produce the desired practical
result.  I have no interest in encouraging such efforts.

Michael deHaven Newsom
Howard University
School of Law

"Scarberry, Mark" wrote:

> Marty's apparent agreement (non-disagreement) with Tom strikes me as quite
> important. Is this a basis on which many of us can reach a consensus
> position? I thought the Santa Fe judgment was correct, but I was bothered by
> the way Justice Stevens threw all the facts into the pot and came out with
> endorsement of religion without explaining clearly which facts were
> determinative. This will give lower courts a lot of leeway, not to the
> benefit of free expression. I was especially bothered by Justice Stevens'
> view that a govt.'s failure to prohibit religious speech is a factor in
> favor of finding govt. endorsement of it. Marty's and Tom's apparent
> agreement makes me hope that we can understand govt. permission of religious
> speech on a neutral basis as something other than an impermissible
> endorsement.
>
> Mark S. Scarberry
> Pepperdine University School of Law
> mark.scarberry at pepperdine.edu
>
> -----Original Message-----
> From: Lederman, Marty [mailto:Marty.Lederman at USDOJ.GOV]
> Sent: Tuesday, June 20, 2000 3:09 PM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: Possibilities after Santa Fe
>
> 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 o!
> r 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 vice!
> s 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