Baptisms in rivers located in public parks?
Berg, Thomas C.
TCBERG at stthomas.edu
Tue May 25 08:58:57 PDT 2004
Marty, in your post you say that there would be no free speech claim here,
even if the religious ceremony were singled out for prohibition, because (1)
baptism is more conduct than speech and (2) "more importantly, the state
obviously hasn't created any sort of public forum in the public river." I
get point #1, but on #2, are you saying that even if the activity were
highly expressive, singling out of the religious activity would only trigger
strict scrutiny (i.e. be unconstitutional) if there was a public forum of
some kind? If so, I don't think I agree. Singling out of the religious
expression would be discrimination by viewpoint under Rosenberger, which is
unconstitutional even in a nonpublic forum under repeated statements (albeit
perhaps dicta) in Cornelius, Lamb's Chapel, etc. And as you note, there
would be no plausible claim in this context that the city was somehow
sponsoring or involved with the activity, so that religion could be singled
out in order to avoid establishment concerns. Similarly, I don't think that
Locke v.Davey (or American Library Association) changes that; although they
both rejected the viewpoint-discrimination claim because no public forum was
involved, they were, as you noted as to Locke, cases about funding rather
than access to facilities. Isn't it still good law that singling out of a
religious viewpoint for exclusion from non-financial access is
unconstitutional, or at least triggers strict scrutiny, even in a nonpublic
University of St. Thomas School of Law (Minnesota)
From: Volokh, Eugene [mailto:VOLOKH at law.ucla.edu]
Sent: Mon 5/24/2004 7:41 PM
To: Law & Religion issues for Law Academics
Subject: RE: Baptisms in rivers located in public parks?
1. I assume, Eugene, that you meant to write "Following Locke v. Davey, is
it unconstitutional for the government to say that 'religious activity is
Yes, I do, sorry about that!
If the answer to that question is "yes," I don't think it's because of the
Widmar/Lamb's Chapel line of cases. The immersion in water is, of course,
expressive -- in the sense that most conduct, and virtually all public
religious ritual, is -- but it's hardly the sort of speech as was involved
in those cases. More importantly, the state in this case obviously hasn't
created any sort of public forum in the public river. Thus, if it's
unconstitutional, it's on Free Exercise grounds, per Lukumi. And that would
depend, I suppose, on whether religious immersion is being singled out, or
treated disfavorably, in any way. Are persons allowed to wade or swim in
the river for nonreligious reasons? (If religion is being singled out for
disfavored treatment, I can't imagine that that's ok under Locke v. Davey.
This is an "access to public lands" rather than a funding, case; there's no
public imprimatur if baptisms are allowed on the same terms and conditions
as other uses of the river; and it's hard to imagine any legitimate reason
-- or any analogy to Locke's reliance on the historical tradition of
government refusing to fund religious activities so as to avoid endorsement
and involvement -- for singling out baptisms for disfavored treatment.)
I assume it is being singled out, given the statement that "He explained
that there had been four drownings three years earlier, and
that everyone was discouraged from going into the water. Robinson added
that religious activity is specifically prohibited. 'We don't allow
religious activities and church services.'"
2. Whether it would be a substantial burden under a state RFRA would depend,
I suppose, on the availability of alternative locales. But I wouldn't be so
sure the government wouldn't prevail on "compelling interest" grounds. The
fact that many other folks would be in the water, too -- also at risk of
drowning -- is hardly a ground for an exemption to a "no wading/swimming"
rule that otherwise is uniformly applied to a particular river because
(according to the Park Manager) "there had been four drownings three years
Why not? As I understood it, here's a major argument in favor of strict
scrutiny under religious accommodation regimes: "Sure, some generally
applicable laws are important in general. But exempting religious practices
would often in fact have no real impact on the government interest.
Applying the law to religious objectors thus isn't necessary to serve a
compelling government interest." So, the argument would go, while lots of
people abuse peyote, in fact it's quite unlikely that peyote abuse would
actually happen in religious ceremonies. While not educating children is
usually bad, the Amish have shown that they take care of their children
well. (I'm actually skeptical of that argument on the facts in Yoder, but
that's what the Court basically held.)
Likewise, if strict scrutiny is the right test, wouldn't the fact that (1)
baptisms are rarely done in very deep water or inclement weather, and (2)
there are lots of people around who can rescue people substantially
undermine the government's claim that applying a generally applicable rule
is *necessary* to serve the compelling interest?
----- Original Message -----
From: "Volokh, Eugene" < <mailto:VOLOKH at law.ucla.edu> VOLOKH at law.ucla.edu>
To: < <mailto:religionlaw at lists.ucla.edu> religionlaw at lists.ucla.edu>
Sent: Monday, May 24, 2004 7:07 PM
Subject: Baptisms in rivers located in public parks?
discussing a public baptism. Here's the explanation for why the people
involved thought the public nature of the baptism was important:
For Kris Jones, who describes herself as a quiet person, it was a bold
act of faith.
"For me, it's very hard to do something like that," said Jones, whose
husband, Todd, also was baptized. "I'm kind of quiet--a
"For me, to do something like that in public was a big step."
But it was that public declaration that Pastor Todd Pyle felt was
"Baptism, originally, was a public display of what took place
inside--that we're not ashamed of being a Christian," Pyle said.
He finds it troublesome that baptisms have moved inside churches and
away from view.
"Christianity is isolated indoors so much that people are confused about
what it is, so we just wanted to bring it outdoors," he said after
coming back to the shore.
Here's the argument that the government is using to restrict it.
As he was explaining that early Christians knew baptism and a public
profession of faith often assured persecution, Park Manager Brian
Robinson walked up and quietly told Pyle he needed to speak to him.
"It is park policy that we don't allow that kind of thing any more,"
Robinson told him of the baptisms.
He explained that there had been four drownings three years earlier, and
that everyone was discouraged from going into the water.
Robinson added that religious activity is specifically prohibited. "We
don't allow religious activities and church services."
Afterward, Pyle said he'd been unaware of the prohibition. Before his
next baptism, he said he would investigate the rules and if the local
governments forbade it, he'd find another place to go.
(1) Following Locke v. Davey, is it constitutional for the government
to say that "religious activity is specifically prohibited"? I assume
yes, given Lamb's Chapel, Rosenberger, and Pinette, since this activity
is speech as well as religious conduct. Or am I mistaken?
(2) If Virginia had a state RFRA, would an evenhanded restriction on
going into the water be seen as a substantial burden? (I assume that
the rule would fail strict scrutiny, if it had to be exposed to strict
scrutiny, given that it seems relatively unlikely that people would
drown when surrounded by dozens of people.)
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