Assaults on the England language

[Douglas Laycock]

The difference between the public square and government sponsorship is the point at which both sides in the culture wars start cheating with their claims about the current law. The Court has never held that private religious speech may or must be censored because it occurs on government property.  Speech is private if the speaker is not a state actor and receives no preferential access or promotion from anyone who is a state actor.
 
So private religious speech is constitutionally protected in the public square.  Government sponsorship of that speech is restricted -- restricted pretty tightly but far from absolutely.  For better or worse, Zorach v. Clausen, Marsh v. Chambers, Lynch v. Donnelly, the menorah/Christmas tree holding in Allegheny County v. ACLU, Van Orden v. Perry, and probably (if they had reached the merits) Elk Grove Unified School District v. Newdow, are all cases where the Court has allowed government to sponsor or prefer religious speech.  There is no such list of exceptions to the rule that government cannot restrict private religious speech because of its religious content.
 
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341
512-471-6988 (fax)

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of JMHACLJ at aol.com
Sent: Sun 7/24/2005 12:48 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Assaults on the England language


In a message dated 7/23/2005 10:17:08 P.M. Eastern Standard Time, ggarman at sunnetworks.net writes:

	The problem, in terms of conflict, it seems to me, arises, not from use of the public square, but from the desire on the part of some to use government space and property for the promotion of religion and for direct attacks upon the constitutional principle of "separation between Religion and Government," (James Madison, "Detached Memoranda," William and Mary Quarterly, 3:555).

But this is the essence of the free speech and peaceable assembly principles that are the underpinning of the public forum doctrine:  use of available public spaces (virtually always "government owned") for promotion of ideas of the speaker free from exclusion based on the disapproval of those ideas by others, whether government actors or private parties.
 
Jim Henderson
Senior Counsel
ACLJ
 
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