Free Speech v. Free Exercise

[A.E. Brownstein]

There is a lot of merit in what Eugene says here. The time it takes to
determine whether a decision in favor of a speaker who expresses a prayer
at a football game was based on the religious message they planned to
express is one of the reasons the majority's opinion in the Santa Fe case
was so clearly correct and why voting for speakers who express prayers at
graduation is even more problematic because of the years it will take to
determine if a pattern of decision making exists. Students would take the
votes and prayers as a sign that religion was being endorsed, just as they
would read the principal's exclusion of religious speech as disapproving of
religion.

The second point is harder for me. Maybe what is bothering me is this. We
typically view a law or decision that singles out the exercise of a
fundamental right for disproportionately burdensome restrictions as
unconstitutional or at least subject to some kind of serious review. That
is true of the singling out of religious exercise or of the decision to
have an abortion (although the standards of review vary).

Now speech is an intrinsic part of the exercise of many fundamental rights.
So one might argue that even in a nonpublic forum speech that is intrinsic
to the exercise of a fundamental right can not be singled out for
discrimination under a reasonableness standard even though that is the
level of protection we provide to other subjects of speech under free
speech doctrine. Speech intrinsic to the exercise of a fundamental right is
privileged against discriminatory treatment because the right itself is
privileged against discriminatory treatment. The Court's decision in
Bigelow v. Virginia suggests such an analysis regarding the protection that
commercial speech relating to abortion services received at a time when the
protection commercial speech received generally was low or uncertain.

But now we switch to restrictions of speech about religion or about
abortion. Some of that speech may indeed constitute the exercise of
religion or be intrinsic to the exercise of the right to have an abortion.
But some of it will not be. Almost all of my posts to this list are about
religion. I do not view them as the exercise of religion.

So my question is -- is all speech about religion privileged or only that
speech which constitutes the exercise of religion? Or to put it another
way, does prohibiting speech about religion alone constitute discrimination
against the exercise of religion (as a prohibition against acts of worship
would be) or does it constitute discrimination against a subject of speech
that is extremely likely to include some religious exercise but a lot of
other messages as well. Same question regarding a prohibition against
speech about abortion in a nonpublic forum. Some of what gets prohibited
will be intrinsic to the exercise of the right. Some won't.

Do we get the same answer in both cases? Rights need not be treated the
same. The free exercise of religion and the right to have an abortion are
governed by different standards of review. Would we also treat them
differently in this context where the question is whether we view the
discriminatory prohibition against a subject of speech to constitute
discrimination against the exercise of the right?

Alan Brownstein
UC Davis



At 09:11 AM 06/15/2001 -0700, you wrote:

>         Well, if we have to wait a long time to determine if the
> principal is being evenhanded, then I take it that the students would,
> too; and if one of the first forms of speech that the principal excludes
> is religious speech -- without even an oral assurance of future
> evenhandedness -- then wouldn't some students take that as a sign that
> the government is disapproving of religion (just as if one of the first
> forms of speech that the principal favors is religious, the students
> might take it as a sign that the government is endorsing religion)?
>
>         As to the nondiscrimination rule, it's true that all protection
> against discrimination is in fact something of a benefit.  (This is why
> the supporters of Amendment 2 in Romer v. Evans were right to say that
> rules banning discrimination against gays created a sort of "special
> right," even while its opponents were right to say that it also aimed at
> assuring equal rights.)  It's also something of a burden; the government
> may neither favor nor disfavor religious speech.
>
>         But I think that Lukumi and the Brennan McDaniel concurrence are
> right that the Free Exercise Clause does "privilege" religiously
> motivated conduct in the narrow sense of protecting against
> discrimination based on its religiosity.  The government may single out
> the killing of certain animals for sport, it may single out the killing
> of certain animals for food, it may single out the killing of certain
> animals for sexual pleasure, but it may not single out the killing of
> certain animals for religious reasons.  I think most observers agree that
> the Free Exercise Clause guarantees at least this much.
>
>         Likewise, I think exactly the same must apply to religiously
> motivated speech by private individuals (which is of course a subset of
> religiously motivated conduct) -- the government may not single it out
> for worse treatment (or, I believe, for better treatment) because of its
> religiosity.
>
>         Eugene
>-----Original Message-----  From:   A.E. Brownstein
>[SMTP:aebrownstein at UCDAVIS.EDU]  Sent:   Thursday, June 14, 2001 3:40
>PM  To:     RELIGIONLAW at listserv.ucla.edu  Subject:        Re: Free Speech
>v. Free Exercise
>
>I'd be glad to flesh out the details of the hypo except that doing
>so  undermines one of the parameters of the hypo that I think is
>particularly  interesting -- which is that we often don't know whether the
>principal  would also exclude week in and week out discussions about
>students' love  lives and might have to wait a long time to determine if
>there is an  evenhanded aspect to his decisions.
>
>I'm also intrigued by Eugene's suggestion that because of risks of bias
>and  other concerns a flat "no discrimination rule" might be the best way
>to  proceed. But of course many of those concerns would also be relevant
>if we  changed the hypo so that the principal was excluding only speech
>about  race, or women, or working conditions in factories, or abortion,
>or  homosexuality. I assume that Eugene is following Rick's hypo and
>suggesting  a flat no discrimination rule with regard to speech about
>religion (arising  from the free exercise clause) while all other speech
>about any other  subject may be restricted as long as the state is acting
>reasonably in  doing so. I certainly think Eugene is correct that
>regulating religious  speech may often involve bias but religious
>expression is not unique in  that regard. So if we can only rarely justify
>excluding any single subject  of speech from a nonpublic forum and
>recognize that not all that much is  gained by giving government the
>discretion to do so, is the right flat rule  one that allows government to
>ban any single subject when it can reasonably  justify doing so except for
>religion or one that either prohibits  government banning any single
>subject in a nonpublic forum or at least  requires the rigorous review of
>such decisions.
>
>Do we privilege speech about religion in this way?
>
>Alan Brownstein  UC Davis
>
>At 12:37 PM 06/14/2001 -0700, you wrote:
>
> >         Could I ask Alan to slightly flesh out the facts of his  >
> intriguing hypo?  For instance, are students in fact barred from
> speaking  > about anything that's "political" -- e.g., the environment,
> proper gender  > roles, racism, and such?  Would the school do the same
> if it found that  > students week in and week out talked about their love
> lives, or about sports?  >  >         I think this is important because
> it seems to me that part of the  > appeal of Alan's hypothetical is
> precisely that, under one possible set  > of facts, it seems
> evenhanded.  If indeed the criterion of exclusion were  > not religion as
> such, but is rather "topics on which people's minds are  > probably
> already made up, and that are likely, if presented in the way  > that our
> students have in the past presented them, to just turn into  >
> sloganeering rather than real conversation," then there might be less
> of  > a concern about discrimination against religion.  Likewise, if
> the  > criterion of exclusion were "topics that we've already covered
> three or  > more times in the past three months," that too seems less
> discriminatory  > against religion.  >  >         On the other hand, if
> it turns out that when a student is talking  > about her problems finding
> a boyfriend who treats her well, students are  > perfectly free to orate
> on how this is caused by patriarchy and continued  > sexist oppression,
> and the solution is endorsing the works of Catharine  > MacKinnon, then
> it would seem much more troublesome to bar students from  > explaining
> how they think it's caused by lack of religious values, and  > the
> solution is endorsing the Bible.  What's more, in such a situation,  >
> any pedagogical benefits of creating a supposedly broader dialogue
> would  > be overcome by the message of disapproval of religion that such
> a  > selective exclusion would create.  >  >         So I'd love to hear
> some further detail from Alan on this, if he  > thinks those details
> would be helpful.  But let me also ask the  > following:  Even if the
> hypo does show that in a few situations the "no  > discrimination against
> religious speech by private people" principle will  > deprive the school
> of a mildly valuable pedagogical tool, might not the  > very difficulty
> of coming up with the hypo -- the very rarity of the  > situation --
> suggest that a flat "no discrimination" principle would  > still be a
> sensible one?  >  >         After all, we operate here in an area that
> many people have  > rightly pointed out is rife with the risk of bias,
> conscious or  > subconscious, on the part both of school officials and
> judges.  This risk  > of bias seems to me to cut in favor of clearer
> rules rather than more  > discretionary standards (as the Free Speech
> Clause discretionary  > licensing cases suggest, in a somewhat different
> context).  >  >         Now one problem with clear rules is that they
> might be  > overinclusive compared to the value being served, and
> discretionary  > standards might -- if perfeclty applied -- be
> better.  But if the clear  > rule is overinclusive only in very unusual
> circumstances, and if the harm  > of this overinclusiveness is simply
> that schools can't engage in the  > interesting and valuable but hardly
> critical exercises that Alan  > describes, wouldn't it be better to go
> with the rule?  >  >         Eugene  >-----Original
> Message-----  From:   A.E.
> Brownstein  >[SMTP:aebrownstein at UCDAVIS.EDU]  Sent:   Thursday, June 14,
> 2001
> 11:31  >AM  To:     RELIGIONLAW at listserv.ucla.edu  Subject:        Re:
> Free Speech  >v. Free Exercise  >  >It isn't easy coming up with a
> hypothetical that tests Rick's  >interesting  hypo because in most
> nonpublic forum contexts it isn't  >reasonable to  exclude just speech
> about religion and nothing else.  >  >But consider this example. A public
> school hosts weekly,  >non-compulsory,  assemblies right after school in
> which students are given  >the opportunity  to come up to the podium in
> the auditorium and speak to  >their peers about a  variety of issues and
> topics. It is a nonpublic  >forum. The school imposes  parameters on the
> subject matter that may be  >discussed and is selective in  admitting
> student speakers on subjects that  >fall within those parameters.  But
> the school formally disassociates  >itself from what the student's
> say.  They are not speaking for the school.  >The principal notices that
> many  student speakers elect to talk about  >politics and about religion.
> The  principal would like the students to  >talk about a broader range of
> issues  in part because a lot of students  >are not attending the
> assemblies because  they are not interested in being  >lectured to by
> their peers on these two  subjects and in part because he  >believes
> there is educational value in  public speaking about a range
> of  >issues.  >  >So one week the principal announces that no one will be
> allowed to  >talk  about politics during that week's assembly. The
> principal is  >delighted with  the result. More students attend the
> assembly and students  >talk about a  broader range of topics.  >  >The
> next week, the principal announces that no one will be allowed
> to  >talk  about religion at the assembly that week.  >  >Assuming that
> the prohibition against speaking about politics during  >the  first week
> is upheld as a reasonable content-based regulation of  >a  nonpublic
> forum, is the prohibition against speaking about
> religion  >the  following week constitutional under the free speech
> clause  >but  unconstitutional under the free exercise clause.  >  >Alan
> Brownstein  UC Davis  >  >  >  >  >  >  >  >  >  >  >  >At 10:27 AM
> 06/14/2001 -0700, you wrote:  >  > >         I agree entirely with Rick
> that discriminatory exclusion of  >  > religious speech or religious
> worship -- singling out religious  > conduct  > for special prohibition
> -- violates the Free Exercise Clause  > under  > McDaniel and Lukumi
> Babalu Aye.  >  >         Thus, let's say  > that the government were to
> say:  "Though you may  > kill animals for  > other reasons in this state
> park, you may not engage in  > religious  > killing of animals."  I think
> this rule would violate the Free  >  > Exercise Clause just like a total
> ban on religious killing of animals  >  > would; like other
> antidiscrimination rules, the ban on discrimination  >  > against
> religious conduct by private people applies even when the  > burden  > on
> the targets is smaller (here, denial of access to government  >
> property  > for a certain conduct rather than a total ban on this  >
> conduct).  Does  > anyone disagree on the "no religious sacrifice in
> the  > park, but other  > killing of animals is OK hypo," by the  >
> way?  >  >         If I'm right on this, then the same must apply to
> "no  > oral  > worship" rules, such as "Though you may speak and
> congregate for  > other  > reasons on this property, you may not engage
> in religious speech  > [or in  > religious worship]."  Religious speech,
> including prayer and  > worship,  > must be at least as protected from
> discrimination by the Free  > Exercise  > Clause as religious conduct
> would be.  >  >         So I  > think that Widmar, Lamb's Chapel,
> Rosenberger, and Good News  > could  > have equally well been decided as
> Free Exercise Clause cases.  In  >  > fact, in my NEA problem, I think
> the Free Exercise Clause argument is  >  > stronger than the Free Speech
> Clause  > argument.  >  >         Eugene  >  >Rick Duncan
> writes:  >Assuming that  > exclusion of religious groups from a  forum is
> treated as a  >viewpoint  > restriction on speech,  the Free Speech and
> Free Exercise  >Clauses  > should  produce similar outcomes (strict
> scrutiny under  >Lamb's  Chapel  > on the speech side and strict scrutiny
> under  Smith-Lukumi  >on the  > religious freedom side).  But suppose
> that the Court decided  > that  >exclusion of  religious speech was not a
> viewpoint  > restriction  >(but  rather a subject matter restriction that
> might  > be  permissible in a  >limited forum). I don't know how
> this  would come  > up, but it was what the  >dissent argued
> in  Rosenberger if memory serves  > me well. Maybe you  >could  argue
> that *worship* is a subject but not a  > viewpoint  and thus a  >rule
> excluding religious worship is a  subject  > matter but not a
> viewpoint  >exclusion.  >  >Now, by targeting religious  > worship for
> discriminatory  exclusion from a  >forum, surpassingly strict  >
> scrutiny  should be triggered under Lukumi  >regardless of
> the  standard  > under the Free Speech Clause. Clearly,  >this  rule is
> neither neutral  > nor generally applicable. Am I  wrong
> about  >this?  Cheers, Rick Duncan