Baptisms in rivers located in public parks?

A.E. Brownstein aebrownstein at
Tue May 25 10:36:12 PDT 2004

Just to be clear, Eugene. I take it you would also argue that an exemption 
from a "Don't go in the water" park regulation for public baptisms would 
also be unconstitutional viewpoint discrimination.

Alan Brownstein
UC Davis

At 10:25 AM 5/25/2004 -0700, you wrote:
>     I agree with Tom on point 2, but I wonder about point 1.  The public
>baptism, as I understand it, was public precisely because it was
>intended to convey a message to the public ("we're not ashamed of being
>Christian").  The baptism is a group ceremony partly because it is
>intended to convey a message to the congregation (perhaps "this is what
>we believe in, and this person is joining us").  The conduct portion of
>the ceremony -- being dunked in the water -- isn't being engaged in
>because of any secular noncommunicative effects of the behavior.  People
>aren't trying to cool off, or exercise their muscles, or enjoy the
>feeling of water on their skin, or all the other reasons people go into
>the water.
>     This seems then to be a form of expressive conduct, intended to and
>likely to convey a message to both fellow congregants and to the public.
>It's no less expressive conduct, I think, than (say) burning a flag or
>burning a draft card.  The conduct is being barred because it was
>religious, under a rule that bars "church services" -- clearly speech --
>as well as "religious activities" more broadly.  Why isn't this the same
>as Rosenberger or Lamb's Chapel?  Is it just because the distinction is
>based on the religious motivation of the conduct, rather than
>specifically the message?  Would a ban on any group meetings that are
>"motivated by their speakers' religious beliefs" have been OK under
>Lamb's Chapel?
>     Eugene
>-----Original Message-----
>From: religionlaw-bounces at
>[mailto:religionlaw-bounces at] On Behalf Of Berg, Thomas C.
>Sent: Tuesday, May 25, 2004 8:59 AM
>To: Law & Religion issues for Law Academics; Law & Religion issues for
>Law Academics
>Subject: RE: Baptisms in rivers located in public parks?
>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 forum?
>Tom Berg
>University of St. Thomas School of Law (Minnesota)

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