A Hypo I Am Using in Class

Wed Aug 1 14:25:37 PDT 2007

I think that Rick is right that the City's action would not be
unconstitutional under a true coercion test and that is why the adoption
of a coercion test by the court is so problematic. It would eliminate
any constitutional commitment to religious equality in government
expression and permit the resources of the state to be used to promote
favored faiths and denigrate others.

Of course, averting one's eyes and taking a few steps out of the way in
no way shields the members of minority faiths from the message the state
is communicating to them and about them with its decision.  They are
told  that their religious beliefs are not worthy of state recognition
while the beliefs of other community members are worthy of such respect.

Alan Brownstein

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Wednesday, August 01, 2007 1:29 PM
To: Law & Religion issues for Law Academics
Subject: RE: A Hypo I Am Using in Class

Alan, I think if we apply a real coercion test under the EC, then
critics of the Nativity display lose because they may avert their eye
and are not coerced into particpating in any kind of religious
expression or celebration.

If it amounts to coercion for the govt to decline to put up the
dissenter's message next to the govt's message, then the govt would have
to display a KKK banner next to its Martin Luther King display and an
"America is evil" banner next to its fourth of July banner. No?

No passive governmental display is coercive, and thus a coercion test
does not require some kind of "equal display" requirement for the public
square. If you disagree with the banner, you can avert your eye or walk
a few steps out of your way to avoid it. That is clearly true under the
Fr Sp Cl, and it should be no less true under the EC.

Rick Duncan

"Brownstein, Alan" <aebrownstein at ucdavis.edu> wrote:

	I think Doug is clearly correct that the gay pride plaintiffs do
not have a viable constitutional claim.  I think a better hypo that Rick
might consider  for his class is this: Suppose the Court moves in the
direction of rejecting an endorsement test and adopts some kind of
coercion test.  A City erects a stand alone nativity scene in front of
city hall. Members of other faith communities in town ask to have
displays of comparable size expressing their religious beliefs placed in
comparable locations on public land. The City denies their requests. Do
the members of these faith communities have a viable constitutional
claim? What about the atheist who wants the City to set up a comparable
display denying the existence of G-d? What do you think, Rick?

	Alan Brownstein

	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
	Sent: Wednesday, August 01, 2007 11:35 AM
	To: Law & Religion issues for Law Academics
	Subject: RE: A Hypo I Am Using in Class

	    Note also that Pico had no majority opinion even supporting
the proposition that libraries may not remove books based on viewpoint.
Four Justices took this view; four took the opposite view; the swing
vote, Justice White, merely concluded that the Court should avoid making
the decision on whether such viewpoint-discriminatory removals are
permitted by waiting until there were more factual findings, which might
make such a decision unnecessary.

	    Eugene

________________________________

		From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
		Sent: Wednesday, August 01, 2007 11:15 AM
		To: religionlaw at lists.ucla.edu
		Subject: Re: A Hypo I Am Using in Class

		The gay pride folks do not have a claim. The Free Speech
Clause creates no right to force someone else to say something -- not
even if that someone is the government. Pico was a very narrow holding.
It involved a library, and surely not every book in the library is
government speech or the government's own message. It did not involve
purchase of books for the library.  The opinions appear to be confined
to removing books from the library because of hostility to their
content, which to some observers looks more like censorship of existing
private speech than failure to speak in the government's own voice. And
of course who knows whether the current Court would accept Pico as a
preceent.

		No one has a right to force someone else, even the
government, Quoting Rick Duncan <nebraskalawprof at yahoo.com>:

		> Here is a hypo I am asking the students in my 1A class
to think about today:
		>
		>  Imagine a city with two displays in the public square
one December: 
		> a nativity scene (without plastic elves or talking
wishing wells) in 
		> one public park,  and a "gay pride--stop homophobia
display" in a 
		> second public park. Both displays provoke
complaints--the nativity 
		> scene by an atheist such as Mr. Newdow who, when he
sees the nativity 
		> display, is offended by the religious nature of the
display (and 
		> feels like an outsider, "not a full member of the
political 
		> community"); and the gay pride display by an Orthodox
Jew whose 
		> religious conscience is offended when he sees that
display and also 
		> feels like an unwelcome outsider and not a respected
member of the 
		> political community.
		>
		>  The city, wishing to avoid controversy and to offend
no one, removes 
		> both displays.
		>
		>  Supporters of the gay pride display sue claiming that
they are a 
		> willing audience for the message of gay pride and
thus, under Pico 
		> and the Free Speech Clause, have a right to receive
the message 
		> expressed by the gay pride display without censorship
imposed by the 
		> city to satisfy the demands  of "hecklers" and others
who don't like 
		> the message.
		>
		>  Do the Pls have a good claim?
		>
		>  Rick Duncan
		>
		>
		>
		>
		>
		>  Rick Duncan
		> Welpton Professor of Law
		> University of Nebraska College of Law
		> Lincoln, NE 68583-0902
		>
		>
		> "It's a funny thing about us human beings: not many of
us doubt God's 
		> existence and then start sinning. Most of us sin and
then start 
		> doubting His existence."  --J. Budziszewski (The
Revenge of 
		> Conscience)
		>
		>  "Once again the ancient maxim is vindicated, that the
perversion of 
		> the best is the worst." -- Id.
		>
		>
		>
		> ---------------------------------
		> Park yourself in front of a world of choices in
alternative vehicles.
		> Visit the Yahoo! Auto Green Center.

		Douglas Laycock
		Yale Kamisar Collegiate Professor of Law
		University of Michigan Law School
		625 S. State St.
		Ann Arbor, MI  48109-1215
		  734-647-9713

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Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"It's a funny thing about us human beings: not many of us doubt God's
existence and then start sinning. Most of us sin and then start doubting
His existence."  --J. Budziszewski (The Revenge of Conscience)

"Once again the ancient maxim is vindicated, that the perversion of the
best is the worst." -- Id.

________________________________

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