Free Exercise Clause and religious speech

[Newsom, Michael]

Eugene's remarks prompt me to point out the terrible time Justice Marshall
had in Mergens trying to articulatae a meaningful and workable standard or
definition of "non-endorsement."  Believing, as I do, that context and
history and tradition matter greatly, I wonder whether such
"non-endorsement" is in fact possible in many instances, especially those
were one religion claims the allegiance of a vast majority of the relevant
population.  I conclude ultimately that Marshall failed, and I don't think
that anybody else has managed to persuade me that they have produced a
"non-endorsement" that will have the intended effect.

-----Original Message-----
From: Volokh, Eugene [mailto:VOLOKH at MAIL.LAW.UCLA.EDU]
Sent: Saturday, February 22, 2003 3:46 PM
To: RELIGIONLAW at listserv.ucla.edu
Subject: Free Exercise Clause and religious speech



        I agree that it's tough to determine whether bans on religious
speech are viewpoint-based, though I think the Rosenberger majority probably
has the better of the debate.  But why doesn't the Free Exercise Clause
offer a clearer way to the conclusion that -- if the speaker is treated as
expressing his own views, rather than speaking on the government's behalf --
explicit exclusion of religious speech (while most other kinds of
ideological speech are allowed) is impermissible?

        I take it, for instance, that if a school overtly barred students
from wearing religious jewelry, while allowing all other secular jewelry,
we'd say that this is a Free Exercise Clause violation -- it explicitly
burdens religiously motivated practice but not otherwise identical secular
practices, as in Lukumi Babalu or in McDaniel v. Paty.  True, it's not a
legal prohibition (especially if attendance isn't compulsory at the relevant
age), but if the First Amendment bars discrimination against religious
practice, why shouldn't it (like the Equal Protection Clause) bar
discrimination both as to total prohibitions and denials of benefits?  Say
the City of Hialeah allowed killing of animals on city property but not
religious sacrifices; I assume we'd say that this violates the Free Exercise
Clause, even though it applies only to city property.  Likewise, I'd think,
when the government is acting as educator rather than as proprietor or as
sovereign.

        It seems to me the same applies to religious speeches.  If the
government allows ideological comments generally in the student's speech,
and explains this tolerance by saying "The speaker is expressing only his
views, not others' views, and we want to provide speakers the opportunity to
express their views, even if not all agree with them," then it may not
discriminatorily exclude religious conduct -- such as speeches that invoke
the speaker's religious beliefs -- from this program.  To do so would be to
exclude exercise of religion precisely because of its religiosity, just as
was the case in Lukumi.

        What about the government's supposed interest in preventing people
from being offended, or being quasi-coerced to listen to ideologies they
disagree with?  Even if the interest is compelling, the exclusion of
*religious* speech fails strict scrutiny, since it's underinclusive with
respect to the interest.  It's true that the exclusion of religious speech
*is* narrowly tailored to the interest in preventing people from being
offended by religiosity, or being quasi-coerced to listen to religious
ideologies they disagree with.  But, as in Simon & Schuster v. New York
Crime Victims Board, this interest is itself impermissible underinclusive --
there's no compelling justification from protecting people from exposure to
*privately expressed* (albeit in a government-run forum) religious
ideologies but not other equally controversial or potentially offensive
secular ideologies.  The Establishment Clause does not offer such an
interest, because it is limited to government endorsement of religion; and
the Free Exercise Clause reinforces the notion that there can be no
compelling interest that itself facially discriminates against religious
practice.  But in any event, the Free Exercise Clause analysis at least gets
one to strict scrutiny, which is what the Free Speech Clause analysis would
do, but does so by answering the easy question of whether the policy
discriminates against religion (it does) without the need to answer the
tougher question of whether it discriminates based on viewpoint.

        Furthermore, if a discriminatory *preference* for religion in the
school's policy (e.g., all speakers must say something religious, regardless
of what they themselves would prefer) is unconstitutional endorsement,
advancement, or favoritism for religion, then discriminatory *exclusion* of
religion in the policy (e.g., no speakers may say something religious,
regardless of what they themselves would prefer) is unconstitutional
disapproval, inhibition, and hostility towards religion; the Court has
repeatedly said that disapproval, inhibition, and hostility towards religion
itself violates the Establishment Clause.  Why isn't this an easier way of
resolving the problem than the Free Speech Clause analysis.

        (Incidentally, just so there's no confusion, I am *not* endorsing
Rick's broad view of discrimination against religion, where any exception
for some secular conduct, or even a good deal of secular conduct, requires
an exception for all religious conduct.  Discrimination in favor of some
secular conduct and against all other conduct, religious or otherwise -- as
in antidiscrimination law, the duty to testify, zoning laws, and so on -- is
not in my view discrimination against religiosity, unless it was intended to
discriminate against religiosity.  But when a rule facially or intentionally
discriminates against religion, as it does here, that *is* prohibited by the
Free Exercise Clause.)

        Eugene

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