ADVOCACY OF PUBLIC REJECTION

[Volokh, Eugene]

        Not so hypothetical, of course; the Board's statements specifically
condemned religious groups.  One statement read:

Supervisor Leslie Katz denounces your hateful rhetoric
against gays, lesbians and transgendered people.
What happened to Matthew Shepard is in part due to
the message being espoused by your groups that
gays and lesbians are not worthy of the most basic
equal rights and treatment.
It is not an exaggeration to say that there is a direct
correlation between these acts of discrimination,
such as when gays and lesbians are called sinful and
when major religious organizations say they can
change if they tried, and the horrible crimes committed
against gays and lesbians.

Another

call[ed] for the Religious Right to take accountability for
the impact of their long-standing rhetoric denouncing gays
and lesbians, which leads to a climate of mistrust and discrimination
that can open the door to horrible crimes such as those
committed against Mr. Gaither.

(The third apparently didn't mention religious organizations as such.)

                My view is that government officials must be able to point
both to misconduct and good conduct by religious groups, whether Islamic,
fundamentalist Christian, or whatever else.  When religious groups do
things, whether good or bad, they become proper subjects for criticism and
praise, whether by private speakers or governmental ones.  And this is true
even though such criticism or praise might in some measure be interpreted as
disapproval or endorsement of the groups.  At the same time, I recognize
that the existing endorsement test might indeed condemn such speech, and
that it may be hard to distinguish speech that should be permissible
criticism or praise from speech that should be unconstitutional disapproval
or endorsement (surely the labels themselves alone won't do it, and other
distinctions that come to mind, such as a distinction between praise of a
group's theology and of its actions or public statements, seem pretty
gossamer).

                Eugene


> -----Original Message-----
> From: Scarberry, Mark [SMTP:Mark.Scarberry at PEPPERDINE.EDU]
> Sent: Friday, January 18, 2002 10:46 AM
> To:   RELIGIONLAW at listserv.ucla.edu
> Subject:      Re: ADVOCACY OF PUBLIC REJECTION
>
> Suppose the San Francisco Board of Supervisors adopted the following
> resolution: "(1) We condemn fundamentalist Christians for their hatred of
> sexual minorities. (2) Fundamentalism in any religion is dangerous. (3)
> Public spirited citizens will avoid becoming involved with fundamentalist
> religious groups."
>
> Doesn't this violate Justice O'Connor's endorsement test? This is an
> endorsement of a view of a particular view of religion, and it attempts to
> make "outsiders" out of those who have particular kinds of religious
> faiths. Is the actual resolution adopted by the SF Bd of Supervisors
> distinguishable? Suppose the Bd adopted only sentence (1)? (2)? (3)? some
> combination of them?
>
> Mark S. Scarberry
> Pepperdine University School of Law
> mark.scarberry at pepperdine.edu
>
>
>
>  -----Original Message-----
> From: David E. Guinn [mailto:davideguinn at YAHOO.COM]
> Sent: Friday, January 18, 2002 6:51 AM
> To: RELIGIONLAW at listserv.ucla.edu
> Subject: ADVOCACY OF PUBLIC REJECTION
>
>
>
>       I think an interesting question arises in this case (I haven't read
> the opinion yet):
>
>       Culture War's Latest Round Won by City of San Francisco
> <http://www.law.com/students/>
>       The Recorder
>       A divided panel of the 9th U.S. Circuit Court of Appeals ruled
> Wednesday that the San Francisco Board of Supervisors didn't violate the
> Constitution when it passed resolutions in 1998 criticizing a religious
> coalition's anti-gay rhetoric. The resolutions were passed after the
> coalition took out a full-page newspaper advertisement criticizing all
> forms of sexual "sin," including homosexual and premarital sex.
>
>       ******
>       The Rev. Donal Wildman and the American Family Association were
> violently attacked back in the 1980s (very unfairly, I thought, by such
> respectable sources as the NY Times, etc.) when they advocated that
> television stations refuse to broadcast certain programs like "Married
> With Children"  and that consumers should boycott advertizers on those
> programs. (They were not advocating legal censure - merely seeking public
> condemnation.)  It is interesting that when the shoe is on the other foot
> (i.e. somebody criticizes their position and advocates that their position
> not be accepted for broadcast) they sue.
>
>       If religion takes a public stand on a controversial issue of public
> concern - should they be free from counter argument by those holding
> different views?  Does it matter that the opinion is expressed by a
> government entity?  Would we say the same thing if the speaker was a
> non-religious group (i.e. should the government not criticize the KKK or
> el Queda - or even the Boy Scouts)?
>
>       David
>
>       David E. Guinn, JD, PhD
>       5032 N. Glenwood Ave. #3
>       Chicago, IL 60640
>       (773) 334-7223
>
>
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