Free Exercise Clause and discrimination against religion
Michael deHaven Newsom
mnewsom at LAW.HOWARD.EDU
Mon Oct 16 16:49:16 PDT 2000
"Volokh, Eugene" wrote:
>
>
> I confess that I disagree almost entirely with Michael Newsom
> on the freedom of speech issue -- but I do agree that the claim that
> discrimination against religious content is viewpoint-based is at
> least somewhat controversial. I think Lamb's Chapel and Rosenberger
> got the better of that question, but one can certainly come up with
> credible arguments on the contrary.
>
> Which is why I wonder whether it might be better for the Court
> to decide this on what seems to me the much more straightforward Free
> Exercise Clause argument. Smith, Lukumi, and McDaniel all suggest
> that discrimination against religious practices violates the Free
> Exercise Clause.
But some discrimination against religious practices (which includes
speech in these cases) is required by the Establishment Clause. See
Engel, Schempp, Lee, Santa Fe ISD. Nobody has a Free Exercise right to
use the common schools to proselytize school children. Congress gave
student-led groups that right under EAA. And that is troubling enough.
> This program clearly discriminates against religious practices; why
> wouldn't it be a Free Exercise Clause violation, whether or not it's
> also viewpoint discriminatory? After all, I assume that a government
> program that gave only religious groups access to a school would
> violate the Establishment Clause, whether or not it was seen as
> viewpoint-discriminatory, because it improperly prefers religious
> practices. It seems to me that a government program that singles out
> religious groups for denial of access would likewise violate Free
> Exercise.
Again, the cases would suggest otherwise. Consider the Gideon Bible
cases, for example, like Tudor (New Jersey, 1953) if the Engel line of
cases is not persuasive on the point.
>
>
> So let me ask: What is the scope of the Free Exercise
> Clause's no-discrimination-against-religion-or-religious-behavior
> norm, and why isn't it broad enough to prohibit the discrimination
> against religious speech at issue in Lamb's Chapel or in the new
> cases?
You cannot solve the problem with abstractions. Free Exercise and
non-Establishment do not, properly understood, pull against each other.
What has happened is that the Court has cut back on the right of
religious groups to proselytize public school children. It seems to me
that we cannot get to sensible conclusions if we ignore the reasons why
the Court took this step. Again, it has nothing whatsoever to do with
abstractions. Free Exercise and non-Establishment work together if we
stay focused on the factual, historical and policy considerations that
have produced, with the exception, perhaps, of Mergens, a reasonably
coherent line of cases regarding religion in the common schools. So,
for me, the relevant question is what does Good News Club mean to do if
it gains access to the common schools. Of course, this has nothing to
do with "free speech."
>
>
> -----Original Message-----
> From: Michael deHaven Newsom [SMTP:mnewsom at LAW.HOWARD.EDU]
> Sent: Thursday, October 12, 2000 1:51 PM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: Re: (Fwd from Brad Clanton) re: Cert. grant /
> viewpoint discrimination
>
> For what it is worth, I think that the Court got off the track
> when it decided Lamb's Chapel. Treating religious speech merely
> as one more form of speech leads to a distorted view of the
> Religion Clauses. It may be that in particular cases religious
> speech should be treated the same way as non-religious speech is
> treated, but in other cases it should not. Recognizing that my
> views are distinctly minority views, I do not see, therefore, the
> relevance of content based discrimination doctrine when religious
> speech is concerned.
>
> What little I understand about the facts in Milford merely
> reinforces my views. The revivalist evangelicals who seek access
> to the schools have a theology that is "word based." Thus
> religious speech, rather than liturgy and sacraments and church,
> lie at the heart of their very conception of religion. To treat
> their speech as if it were just a species of ordinary speech puts
> liturgical and sacramental religion at at distinct disadvantage.
> Let me illustrate (and, to some extent, digress).
>
> I have argued before on this listserv that the Equal Access Act
> is biased against liturgical religion, notwithstanding the fact
> that the Roman Catholic Church, wrongly in my view, appears to
> have supported the EAA. "Church" for an evangelical can be led
> by students for the typical evangelical service consists (leaving
> baptisms to one side) of speech -- scripture readings, prayers,
> hymns, "altar" calls, testimonies, and the like. The same cannot
> be true for liturgical and sacramental religions which require a
> proper minister to preside at the liturgy. A high school student
> could never -- or almost never -- qualify as a Roman Catholic
> Priest for the purposes of celebrating the Mass. So Catholics
> cannot have "church" under EAA whereas evangelicals and other
> adherents of "word" religion can. (Interestingly enough, I
> suspect that Islamic and Baha'i students could have "church"
> since I do not believe that, at least in the Sunni tradition of
> Islam, there is anything that remotely resembles the sacramental
> priesthood in Roman Catholicism and Eastern Orthodoxy.)
>
> The long and the short of it is that the Lamb's Chapel doctrine,
> as well as the EAA are biased in favor of "word" religion,
> evangelicalism in particular. Given our history, and given the
> salience of what I have called in an article to appear early next
> year, the American Protestant Empire, this bias is unacceptable.
>
> But I can crunch doctrine with the best of them, and if one
> accepts Lamb's Chapel, then Milford may well get reversed on
> appeal. One bad decision can spawn another bad decision, and
> that is, I am afraid, what could well happen here. But, apart
> from Lamb's Chapel, I find nothing "right" in either the the
> Eighth Circuit decision or Jacobs' dissent.
>
> Take a look at Ronald Thiemann's book Religion in Public Life: A
> Dilemma for Democracy. He argues, correctly in my view, that the
> Founders never adequately explained the origins and the source of
> civic morality and virtue in the new American nation. This is
> all the more problematic because religion and morality, in the
> Western tradition, have been closely tied to each other. One
> finds contemporary evidence of that tie in the Northwest
> Ordinance which yokes religion, morality and knowledge together
> in a way that implicates public education. In the famous
> Cincinnati religion in school case, an 1870 case wherein the Ohio
> Court upheld a Cincinnati School Board rule excluding Bible
> reading (or maybe it was religious prayer or both) from the
> common schools. The Court took a look at language in the Ohio
> Constitution that was obviously patterned after the Ordinance (no
> surprise here, for a lot of reasons, not least of which is the
> fact that Ohio was part of the Northwest Territory). The
> majority "disconnected" religion, morality and knowledge by
> assigning primary responsibility for them to different
> institutions -- knowledge to the schools and religion and
> morality, as I read the opinion, to religious institutions and
> not the common schools.
>
> This is what the fight has been about and continues to be about,
> up to and including the debate in the United States Senate in
> 1984 over a proposed amendment to the Constitution that would
> restore "religion" in the common schools, among other things.
> Should one disconnect morality in the way the Ohio Court (in the
> Minor case) did, or should one insist on connecting them.
>
> I mean no disrespect to The Good News Club, but it clearly has in
> mind not only a yoking of morality and religion and knowledge,
> but it wants to do it in ways that strongly resemble those
> disapproved in Cincinnati over 130 years ago. To describe
> Milford as a free speech case makes no sense to me whatsoever, in
> light of our own history, no matter what Lamb's Chapel might or
> might not say. There are groups bent on doing an end run around
> Engel/Schempp, any way that they can. Hiding behind the mask of
> "free speech" is unseemly at best.
>
> One final point. I think that Madison's failure to work out the
> problem of the institutional source of civic morality has much to
> do with his Calvinism. He buys, big time, I think, into the icy
> doctrine of Double Absolute Predestinarianism as it finds
> expression in America as a Protestant Empire, a special elect
> nation. God, in his transcendent cold majesty will provide a way
> for His elect to get the civic morality necessary to keep the
> ship of state afloat, or so Madison had to have believed. What
> Madison and the others failed to think through, or what they were
> afraid to discuss, is their elitism - both religious and
> social. One could argue, with a straight face, (and I will so
> argue in a piece that I have just begun to write) that Madison
> believed that the social elite were also the religious elite and
> one did not have to worry, therefore, about the institutional
> sources and reinforcements of civic morality. Other Americans,
> including those on both sides of the religion in school issue,
> know better. And as Thiemann suggests, we have been trying to
> make up for Madison's icy Calvinistic elitism for over 200
> years. This stuff ain't about free speech! Thiemann's "Dilemma"
> is about a great deal more than that. That is why Lamb's Chapel
> is wrong, wrong, wrong. The fight is about the attempt of one
> particular "word" religion, American evangelicalism, to maintain
> the religious hegemony that it has enjoyed through most of
> American history. (Today, it has to share the honors with other
> forms of Protestantism, something that makes both evangelical
> and non-evangelical Protestants more than a bit nervous from time
> to time.)
>
> Michael deHaven Newsom
> Howard University
> School of Law
>
>
>
> "Volokh, Eugene" wrote:
>
>
> ----------------- Original message (ID=8B5D337B) (75 lines)
> -------------------
>
> From: "Clanton, Brad" <Brad.Clanton at mail.house.gov>
> Subject: Cert. grant/viewpoint discrimination
> Date: Wed, 11 Oct 2000 15:54:33 -0400
>
> The Supreme Court granted certiorari yesterday in The Good
> News Club v.
> Milford Central School, 202 F.3d 502 (2d Cir. 2000), cert.
> granted, 2000 WL
> 838152 (U.S. Oct. 10, 2000). In that case, the Second
> Circuit affirmed a
> district court decision which held that the school's refusal
> to allow the
> Good News Club to meet in the school's limited public forum
> did not violate
> the First Amendment. The Second Circuit rejected the club's
> argument that
> it was merely offering instruction in moral values --
> something other groups
> were allowed to do -- from a Christian perspective. The
> court explained its
> holding thus:
>
> "The activities of the Good News Club do not involve merely
> a religious
> perspective on the secular subject of morality. The Club
> meetings offer
> children the opportunity to pray with adults, to recite
> biblical verse, and
> to declare themselves 'saved.' The Club argues that these
> practices are
> necessary because its viewpoint is that a relationship with
> God is necessary
> to make moral values meaningful. Even accepting that this
> precept is a
> viewpoint on morality and not a religious principle, it is
> clear from the
> conduct of the meetings that the Good News Club goes far
> beyond merely
> stating its viewpoint. The Club is focused on teaching
> children how to
> cultivate their relationship with God through Jesus Christ.
> Under even the
> most restrictive and archaic definitions of religion, such
> subject matter is
> quintessentially religious."
>
> Now it seems to me that this is clearly wrong. How else
> could one go about
> teaching morals from a "Christian" perspective without
> teaching in
> "Christian" terms? This is clearly viewpoint based
> discrimination, it seems
> to me, and so it seemed to the Eighth Circuit in Good
> News/Good Sports Club
> v. School District of the City of Ladue, 28 F.3d 1501 (8th
> Cir. 1994).
> Judge Jacobs dissented from the Second Circuit's decision
> and made the
> following cogent observation: "The idea that moral values
> take their shape
> and force from God seems to me to be a viewpoint for the
> consideration of
> moral questions. True, religious answers to questions about
> morals and
> character tend to be couched in overtly religious terms and
> to implicate
> religious devotions, but that is because the sectarian
> viewpoint is an
> expression of religious insight, confidence or faith--not
> because the
> religious viewpoint is a change of subject. The fallacy of
> [the court's]
> distinction is that it treats morality as a subject that is
> secular by
> nature, which of course it may be or not, depending on one's
> point of view.
> Discussion of morals and character from purely secular
> viewpoints of
> idealism, culture or general uplift will often appear
> secular, while
> discussion of the same issues from a religious viewpoint
> will often appear
> essentially-- quintessentially--religious."
>
> Aren't Judge Jacobs and the Eighth Circuit clearly right on
> this?
>
> Brad Clanton
> Counsel
> House Judiciary Committee
> Constitution Subcommittee
> 362 Ford House Office Building
> Washington, D.C. 20515
> 202.226.7685 (phone)
> 202.225.3746 (fax)
>
>
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/cgi-bin/mailman/private/religionlaw/attachments/20001016/9d159fda/attachment.htm
More information about the Religionlaw
mailing list