No discrimination against private religious speakers + restrictio
n on religious speech by the government
VOLOKH at mail.law.ucla.edu
Fri Jun 15 13:17:43 PDT 2001
Several posts recently suggested that there's tension between the
"no discrimination against private religious (or antireligious) speakers"
rule, and the rule that the government itself may not engage in at least
certain kinds of religious (or antireligious) speech.
I just thought this morning of an analogy that I hope shows that
there really is no tension here, and I thought I'd float it on the list:
There's broad agreement, I think, with the Lukumi principle that the
government may not single out religious conduct for special burden. As
Scalia stressed even in Smith, the government may not ban -- or, I think,
tax or otherwise burden -- the bowing down before a golden calf.
At the same time, even setting aside the creationism cases (which I
think are quite tough), I think there's also broad agreement that the
government may not itself sponsor obviously religious conduct, at least in
some situations. The government may organize various ceremonies -- national
war memorials, celebrations of diversity, ceremonial destruction of seized
drugs, or what have you -- but it may not organize a national ceremony of
bowing down before a golden calf (at least unless the ceremony is embedded
in some context, such as theater, that keeps it from being a religious
action by the government). Thus, the Establishment Clause essentially
discriminates against (at least certain kinds of) governmental religious
conduct, even though the Free Exercise Clause bars the government from
discriminating against private religious conduct.
I think this last sentence is pretty uncontroversial (though there
are debates about how far the Establishment Clause goes here, e.g., whether
it extends to creches and the like). Certainly most people who criticize
the Good News decision would, I think, endorse that sentence.
Nor would they see any real contradiction there. The basic rule is
nondiscrimination by the government based on the religiosity of conduct. As
to private people's and organization's actions, that's the simple rule I
advocate under the Free Exercise Clause. But the government doesn't have
Free Exercise Clause rights; what's more, a government-run golden calf
ceremony -- or for that matter school prayers -- would be discrimination in
favor of religion. This is why we do say that religious (and antireligious)
conduct (and speech) is one category of conduct (and speech) in which the
government cannot engage.
But this in no way diminishes the force of the Free Exercise Clause
ban on governmental discrimination against private persons' and groups'
religious conduct -- a rule that's pretty uncontroversial as to conduct
generally under Lukumi, and that should apply equally to speech.
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