Is saying things speech?

[Michael deHaven Newsom]

My position is that liturgical religion is NOT about "speech and
conduct"  You insist on bifurcating the two.  I reject that, as the
Church does.  There is one liturgical action that has several elements
that cannot be disaggregated for theological purposes.

Thus, I say that to view religious speech as merely speech is to miss
something important, and is likely to lead to intolerant, insensitive --
not to say just flat out wrong -- decisions. Like Smith.

Again, I am more concerned with context.  You are concerned with sterile
forms.

"Volokh, Eugene" wrote:

>
>
>         I confess that I really do not understand Michael's claim
> here.  Surely Mark Scarberry is right that even if religious worship
> is more than just expression to its listeners, it is indeed
> expression.  The fact that it has special meaning to those who engage
> in it doesn't deprive it of constitutional protection, or diminish
> such protection.
>
>         Michael seems to be arguing that the Free Exercise Clause
> should also protect other conduct that's part of the liturgy; that's a
> different debate, but it's a debate about (as Mark pointed out),
> greater protection for that conduct, not less protection for the
> speech.
>
>         What I don't see here is any explanation for why the
> statements made during the course of the Mass should get any less
> protection simply because the participants believe that they also
> involve transsubstantiation.  The government surely may not act on the
> theory that transsubstantiation takes place -- that's a purely
> religious belief that the government may not take into account.  As
> far as the government is concerned, people are speaking, people are
> listening, people are being emotionally or spiritually or esthetically
> moved, persuaded, or whatever else.  Sounds like speech to me.  Maybe
> if there's a total prohibition on alcohol, the drinking of the wine
> (which is not speech) might be prohibitable -- but surely that can't
> affect whether the speech components of the Mass are prohibitable.
>
>         I don't for a moment claim that "speech" should be a proxy or
> shorthand for "religion."  "Speech" should be a proxy or shorthand for
> "speech" (or possible "communication," to include writing, video,
> music, etc.).
>
>         What I don't quite gather is why, under Michael's theory, the
> very same statements that would be clearly protected by the Free
> Speech Clause if done with no religious intention -- for instance, if
> done by actors who are enacting the Mass in a play -- stop being
> speech if done with religious intention.  I don't deny that they may
> also become the exercise of religion.  I am not arguing that only
> speech is protected by the Free Exercise Clause.  I am simply asking
> why it is that these spoken words supposedly lose Free Speech Clause
> protection (or get lesser protection) simply because they are done as
> part of a liturgy.
>
>         Eugene
>
>      -----Original Message-----
>      From:   Michael deHaven Newsom [SMTP:mnewsom at LAW.HOWARD.EDU]
>      Sent:   Monday, June 25, 2001 2:01 PM
>      To:     RELIGIONLAW at listserv.ucla.edu
>      Subject:        Re: Is saying things speech?
>
>
>
>      "Volokh, Eugene" wrote:
>
>
>                           I don't think religion as such as speech,
>           but I think religious speech is speech.  When a priest says
>           things, and the congregation listens, that seems to me to be
>           speech.
>
>      The priest does more than merely say words.  He confects the
>      Sacrament of the Altar, and the change of the bread and wine into
>      the Body and Blood of Christ cannot be described as "words" or
>      "speech."  At least not for Catholics and Eastern Orthodox.
>      Words, in the ordinary sense -- the saying of the Great Prayer,
>      the Anaphora of the Mass -- may get the process of
>      transubstantiation started, but it is the action of the Holy
>      Spirit in response to a prayer, the epiclesis, (and manual acts
>      performed with the bread and wine) that effect the change of the
>      bread and wine.  The action of the Holy Spirit cannot be
>      described as "speech," neither can the manual acts of the priest,
>      assuming that the word "speech" is to have any coherent meaning,
>      that is.
>           True, the statements have religious meaning to the priest
>           and the congregation; the statements may in a sense be to
>           God as well as the congregation; the congregation will
>           certainly perceive this as something more than other kinds
>           of speech.  That's all well and good, but it seems to me
>           that the statements continue to be speech, and if they are
>           restricted because they are worship services, then they are
>           restricted because of their content (since speech with other
>           content wouldn't be restricted).
>
>      I disagree.  One could say that a priest could say the words of
>      the Great Prayer, but not perform the manual acts with bread and
>      wine (or not use bread and wine).  The doctrine of Economy might
>      or might not kick in to save the action of the Mass anyway, but
>      surely denying manual acts, and denying access to bread and wine
>      is rather more than restricting speech, isn't it?
>
>
>                           It's also true that these statements are not
>           aimed at persuading the audience as such -- but neither are
>           many books, movies, or even speeches delivered by someone
>           who's "preaching to the choir" in a figurative sense.  But
>           they are means by which the speaker and the listener
>           maintain and build their commitment to their ideology,
>           communicate their views about God, and in general do all the
>           things that speech does.
>
>      Again, our faith community does not depend solely upon words.
>      That is the whole point.
>           I take it that Michael would agree that a sermon is speech
>           -- why exactly would a mass be different from a sermon for
>           First Amendment purposes, and how would one draw an
>           administrable line between the two?
>
>      Yes, I agree, a sermon (homily) is speech.  But the homily is not
>      the point of the liturgy.  The liturgy of the Word, which
>      culminates in the homily is not the Mass.  There is the liturgy
>      of the Eucharist which immediately follows the liturgy of the
>      Word.  Let me rephrase this.  The Mass consists of several parts
>      of which the liturgy of the Word is only one part out of five, I
>      think it is.  (Gathering, Liturgy of the Word, Liturgy of the
>      Eucharist, Communion, and Dismissal)
>
>                           I therefore think that Widmar v. Vincent was
>           absolutely right in its treatment of this very issue, which
>           is worth quoting:
>
>      No, Widmar is flatly wrong.  It reflects a "word" perspective
>      regarding religion that overlooks or ignores liturgical religion.
>
>                The dissent argues that "religious worship" is not
>                speech generally protected by the "free speech"
>                guarantee of the First Amendment and the "equal
>                protection" guarantee of the Fourteenth Amendment.  If
>                "religious worship" were protected "speech," the
>                dissent reasons, "the Religion Clauses would be emptied
>                of any independent meaning in circumstances in which
>                religious practice took the form of speech."   This is
>                a novel argument.
>
>      The point here, by the way, is not the one about liturgy.  It is
>      that, even in a "Word" religion context, religion may involve a
>      cultus and an ethos which have action at their heart or center.
>      (Example: the Quakers and conscientious objection to military
>      service.  The Quakers are as anti-liturgy as it is possible to
>      be, but they still have an ethos and a cultus which calls for
>      action, pacifism in this instance.) When you add in liturgy, the
>      point is strengthened.  What independent value do the Religion
>      Clauses have?  The disagreement, of course, is over that value,
>      its shape, contour and substance.
>                The dissent does not deny that speech about religion is
>                speech entitled to the general protections of the First
>                Amendment.   It does not argue that descriptions of
>                religious experiences fail to qualify as "speech."  Nor
>                does it repudiate last Term's decision in Heffron v.
>                International Society for Krishna Consciousness, Inc.,
>                which assumed that religious appeals to nonbelievers
>                constituted protected "speech."  Rather, the dissent
>                seems to attempt a distinction between the kinds of
>                religious speech explicitly protected by our cases and
>                a new class of religious "speech act[s]" constituting
>                "worship."  There are at least three difficulties with
>                this distinction.
>
>                First, the dissent fails to establish that the
>                distinction has intelligible content.  There is no
>                indication when "singing hymns, reading scripture, and
>                teaching biblical principles" cease to be "singing,
>                teaching, and reading" -- all apparently forms of
>                "speech," despite their religious subject matter -- and
>                become unprotected "worship."
>
>      This can't be real.  Consider Employment Division v. Smith.  It
>      is no accident, by the way, that the Native American Church got
>      rough treatment.  The peyote ceremonies at stake there were
>      profoundly influenced by the Catholic Mass, as those who know
>      that religion have made perfectly clear.   The issue, for
>      Catholics, I think, is none of the things that the Court has just
>      said, rather, it is about transubstantiation -- the action of the
>      Mass.
>
>
>                Second, even if the distinction drew an arguably
>                principled line, it is highly doubtful that it would
>                lie within the judicial competence to administer.
>                Merely to draw the distinction would require the
>                university -- and ultimately the courts -- to inquire
>                into the significance of words and practices to
>                different religious faiths, and in varying
>                circumstances by the same faith.  Such inquiries would
>                tend inevitably to entangle the State with religion in
>                a manner forbidden by our cases.
>
>      The point is that once we recognize that speech is a lousy short
>      hand or proxy for religion, we can then begin to find out just
>      what the courts can or cannot do with regard to "worship" as
>      contrasted with "speech."
>
>
>                Finally, the dissent fails to establish the relevance
>                of the distinction on which it seeks to rely.  The
>                dissent apparently wishes to preserve the vitality of
>                the Establishment Clause.  But it gives no reason why
>                the Establishment Clause, or any other provision of the
>                Constitution, would require different treatment for
>                religious speech designed to win religious converts
>                than for religious worship by persons already
>                converted.  It is far from clear that the State gives
>                greater support in the latter case than in the former.
>
>      Again, I find myself straining to see the relevance of the entire
>      passage.   But I still think that the basic problem is one of
>      understanding that worship and speech should not be conflated,
>      whether or not the question on the table has anything to do with
>      proselytizing.
>
>
>      Michael Newsom writes:
>           This is for both Alan and Eugene.  You seem to characterize
>           religion as speech.  I
>           wonder if that is altogether accurate.  Would characterizing
>           the Catholic Mass or
>           the Orthodox Divine Liturgy as "speech" adequately cover or
>           comprehend the meaning
>           of the eucharistic liturgy?  The word "liturgy" means "work
>           of the people."  Again,
>           speech seems hardly adequate to describe work.
>
>           Doesn't this suggest that we need to find a language other
>           than "speech" for talking
>           about the Religion Clauses, at least as far as liturgicals
>           are concerned?
>
>           Michael deHaven Newsom
>           Howard University School of Law
>
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