Is saying things speech?
Mark.Scarberry at PEPPERDINE.EDU
Fri Jun 29 12:19:45 PDT 2001
Let me add only one small point to Eugene's response to Michael's first
paragraph. IMHO it is *not* necessary to "bifurcate" religious speech and
religious exercise to recognize that both are present. The presence of each
is constitutionally significant even if they can't be disaggregated.
Catholic Christians (and many others) believe the wine and bread are changed
so that they are no longer wine and bread, but I don't think they believe
that the words spoken in the liturgy are changed so that they are no longer
words. And, as Eugene, says, a court couldn't rely on that religious truth
in any event.
In his second paragraph Michael says "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." But
the whole point of my prior post is that religious liturgy is not "merely"
speech. It is both speech and religious exercise, and ought to be protected
under both categories.
Perhaps when Michael says that religious speech is not merely speech, he is
agreeing that it is still speech, though not only speech. Do we agree on
that? If we do, then why isn't it entitled to protection under free speech
doctrine? Giving it such protection isn't an establishment of religion, and
I know of no reason to think the free exercise clause was designed to be the
only protection for religious speech. What is the basis for creating an
exception to free speech protection? Surely the Founders would be astounded
to have religious speech lumped in with obscenity and defamatory speech.
("Airplane" fans need not write in to say, "OK but don't call me Shirley.")
From: Michael deHaven Newsom
To: RELIGIONLAW at listserv.ucla.edu
Sent: 6/29/01 9:29 AM
Subject: Re: Is saying things speech?
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
"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,
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.
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
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
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
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
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
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
of the eucharistic liturgy? The word "liturgy" means "work of the
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
Michael deHaven Newsom
Howard University School of Law
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