Free Exercise Clause and discrimination against religion

[Volokh, Eugene]

        Alan's hypos are very interesting, and I'm not sure how I'd come out
on all of them -- but, as Alan points out, they don't squarely raise issues
of discrimination against religion or religiosity as such, and seem to be
designed not to raise such issues.

        If, however, the examples involved, say, a rule that "all groups may
try to recruit school kids, but religious groups [or groups that express
views on religious topics, whether religious or atheist] may not," or that
"all controversial groups are allowed, but religious groups are not," or
"all advocacy groups may meet during school hours, but religious groups may
not," then it seems to me that there'd be a square violation of the Free
Exercise Clause and the Establishment Clause
no-disapproval/inhibition/hostility prong.  Am I mistaken?  If I am, and the
"no discrimination against religion" principle of Lukumi et al. and the
no-disapproval/inhibition/hostility principle enunciated in various Estab Cl
principles don't apply to these cases, why exactly is that so?

        Eugene

> -----Original Message-----
> From: A.E. Brownstein [SMTP:aebrownstein at UCDAVIS.EDU]
> Sent: Tuesday, October 17, 2000 5:57 PM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: Free Exercise Clause and discrimination against religion
>
> Let me offer a couple of very partial responses to Eugene's general
> question, although I do not suggest that either response is relevant to
> the
> Good News case.
>
> 1. Would it be permissible for a school to have a no recruitment or
> immediate involvement of school kids rule when it makes its facilities
> available to an outside group immediately after school has ended. The
> school is willing to make space available for the meetings of outside
> groups, but it doesn't want the children leaving school to be recruited to
> attend non-school programs. Outside groups get access to the building
> space
> but they don't get access to the children as an audience or market for
> their expressive activities. Of course, this rule would extend to more
> than
> religious groups and it would not apply to all religious group meetings.
>
> 2. Might a school conclude that there are certain expressive activities
> that raise constitutional issues or problems of state support and others
> that do not. The school wants to avoid any suggestion of support for
> partisan political groups, the "Gore for President club," religious clubs,
> the "Jews for Jesus meeting," racially exclusive groups, etc. So it
> creates
> a one half hour buffer between the end of school and allowing these groups
> to use the school facilities. Other groups, where the issue of state
> support would not be problematic, such as the Sun Valley Garden club, may
> meet immediately after school. Again this rule applies to more than
> religious groups so maybe it is not responsive to Eugene's inquiry. Would
> this rule be struck down as viewpoint discrimination or would we at least
> have to determine the nature of the forum and decide whether or not it was
> reasonable if the school is found to have created a non-public forum.
>
> 3. By analogy to Cornelius, might the school prohibit advocacy groups from
> using its buildings until an hour after school has ended. This would
> include some religious groups as well as many other groups.
>
>          I think I'm comfortable with the first rule. The second one is
> much tougher. The third has some precedent behind it.
>
>
>               Alan Brownstein
>
>               UC Davis
>
>
> At 02:18 PM 10/17/2000 -0700, you wrote:
> >         I don't quite agree with Steve Gey's analysis; it seems to me
> > that both Schempp and the Santa Fe case involved entities that the Court
> > treated as government bodies choosing to specially favor religious
> > speech.  Neither involved a situation where the government opened up a
> > program that was available to a wide variety of private people
> expressing
> > their own views; in all the latter cases -- Widmar, Lamb's Chapel,
> > Rosenberger -- the Court held that discriminatory exclusion of religious
> > views was unconstitutional.  This distinction seems to me eminently
> > sensible, even if it's a bit vague in a rather narrow range of
> > cases.         But let me step back and re-ask the broader
> > question:  Lukumi, McDaniel, Fowler, and Smith seem to say that
> > government generally may not single out religious people, institutions,
> > or practices for discriminatory prohibition or burden in situations
> where
> > nonreligious people, institutions, or practices are generally allowed or
> > not burdened.  Given this, to uphold the lower court decision in Good
> > News/Good Sports against a Free Exercise Clause attack (or an
> > Establishment Clause no-disapproval/inhibition/hostility attack), one
> has
> > to come up with some limit to the Lukumi et al. principle.  This is so
> > even if we completely set aside the Free Speech Clause viewpoint
> > discrimination question.         What would that limit be?  When would
> > the government be allowed to discriminate against religious people,
> > institutions, or practices in situations where nonreligious people,
> > institutions, or practices do not labor under the same
> > disability?         Eugene
> >
> >-----Original Message-----  From:   Gey, Steve
> >[SMTP:SGey at LAW.FSU.EDU]  Sent:   Tuesday, October 17, 2000 12:32
> >PM  To:     RELIGIONLAW at listserv.ucla.edu  Subject:        Re: Free
> >Exercise Clause and discrimination against religion
> >
> >I don't believe Eugene's attempt to distinguish government actions that
> >"prefer" religion from those that "discriminate against" religion can
> >withstand careful scrutiny.  In many cases the distinction will depend on
> >nothing more than a careful rephrasing what happens in a particular
> >case.  In Schempp, for example, the state is prohibited from "preferring"
> >religion by mandating the reading of Bible verses over public school
> >intercoms each morning.  But since the state would be permitted to
> mandate
> >the use of public school intercoms to disseminated virtually every other
> >type of information, isn't the state also "discriminating" against
> >religion?  Likewise, after Santa Fe public schools are not permitted to
> >allow students to vote on the inclusion of prayer at public school
> >functions, but students could presumably be allowed to vote to include
> >secular messages at the same functions.  This result prohibits the
> >government from "preferring" religious practices, but it also pretty
> >clearly "discriminates against" religion at the same time by excluding
> >religion from the category of activities that may included in the school
> >function.  I entirely agree that the no-discrimination principle should
> >apply with full force to the regulation of religious speech or behavior
> >that is entirely private and occurs outside the confines of government
> >property or government functions.  But the no-discrimination principle
> >cannot be applied directly to private speech taking place at government
> >functions or on government property without abandoning all but the most
> >limited (i.e., narrow coercion or nonpreferentialist) interpretations of
> >the Establishment Clause.  The Free Speech Clause does cover religion,
> but
> >the Establishment Clause requires a larger buffer between private speech
> >and the government than would be required in the context of secular
> >speech.    The requirement of a buffer between private religious speech
> >and the government helps to explain the difficulties in applying the free
> >speech viewpoint discrimination analysis to religious speech, which was a
> >topic discussed on this list a week or so ago.  In one of the postings on
> >that subject, Alan Brownstein noted that his technique for reaching
> >intuitive judgments about whether viewpoint discrimination had occurred
> in
> >a particular context involved simply reversing the policy being
> >challenged.  Thus, in the Rosenberger context, Alan compared the
> >university policy at issue in that case (refusing to fund any expressive
> >activity that "primarily promotes or manifests a particular belie[f] in
> or
> >about a deity or an ultimate reality") with a hypothetical policy that
> >refused to fund any expressive activity unless it "primarily promotes or
> >manifests a particular belief in or about a deity or an ultimate
> >belief."  Alan argued that the latter policy would constitute obvious
> >viewpoint discrimination because it would subsidize only arguments
> >grounded on explicitly religious or irreligious perspectives.  Therefore,
> >Alan concluded, the U.Va. policy at issue in Rosenberger also constituted
> >viewpoint discrimination.    Unfortunately, Alan's hypothetical doesn't
> >take into account a number of other possibilities that would cause no
> >First Amendment concern to anyone.  Assume in Alan's example that the
> >university subsidizes only those student expressive activities that
> >"primarily promote or manifest particular views about art, music, and
> >literature." Does this constitute viewpoint discrimination against those
> >who request university money to promote their views on politics or
> sports?
> >I think not. So why does Alan's example--i.e., a university subsidy
> >program that refuses to fund any expressive activity unless it "primarily
> >promotes or manifests a particular belief in or about a deity or an
> >ultimate belief"--make most of us uncomfortable? I think Alan's
> >hypothetical program makes us uncomfortable not because of viewpoint
> >discrimination or other free speech problems, but rather because of the
> >basic Establishment Clause problem highlighted by Justice Souter in
> >Rosenberger itself: When a public university provides public money to
> >private religious activities in this manner it is subsidizing religious
> >expression in a way that communicates the state's endorsement of religion
> >in violation of the Establishment Clause. I suspect the reason many
> people
> >resist this conclusion for two reasons:  first, because it requires an
> >acceptance of some version of the endorsement analysis, and second,
> >because it requires an acknowledgement that private religious speech must
> >be treated differently from all other forms of speech when private
> >religious speech becomes too closely associated with the
> >government.  Although I understand the resistance to the conclusion that
> >the government must permit private secular speech in some situations
> where
> >it may not permit private religious speech, in my view this is precisely
> >what the Establishment Clause requires.
> >
> >
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