EC & Compelling Interest

Mon Jul 23 14:14:02 PDT 2007

Of course, one of the problems with a compelling interest test is no one really knows what interests are extraordinarily important and which are less so. And different folks may have different scales of importance.

  In the case of a holiday display, one could view this as a case involving a willing speaker (the county govt) and a willing audience (those who wish to enjoy the holiday expression) who are being censored by a heckler's veto under the EC. I think it is important that govt speech be available to those who wish to receive it. Is it "extraordinarily important?" I don't know. I would at least like to see the Ct apply the compelling interest test and explain why this speech/non-censorship interest is not important.

  Alternatively, the compelling interest in such cases might be the govt's strong interest in diversity and equal regard for religious citizens in a pluralistic public square. If all sorts of secular holidays are celebrated in the public square (gay pride, cinco de mayo, Columbus Day, pork producers day, etc), many people of faith might well feel disrespected and deeply injured by being the only subgroups in the community whose holidays are not celebrated.

  And what about the compelling interest of school officials to decide which curriculum best meets the needs of students in the public schools trumping EC attacks on ID, music curriculum, and the Pledge of Allegiance? 

  Just some thoughts. I don't think these cases are as easy as Eugene seems to think they are, because what may not seem important to some may seem very important to others. And the fact that the Ct doesn't even play the game suggests that maybe the reason is that there is no game to be played because the EC applies as a categorical rule without a balancing test.

  Rick Duncan

"Volokh, Eugene" <VOLOKH at law.ucla.edu> wrote:
  Rick: You might well be right, but it's hard to tell without
some cases that test our sense of this, by coming out differently under
strict scrutiny than under per se invalidation. It's hard to see a
compelling interest behind government holiday displays -- one can surely
argue that endorsement shouldn't be seen as implicating the
Establishment Clause, but it's harder to say that it does implicate it
but that it's just extraordinarily important to allow it.

Eugene

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Sunday, July 22, 2007 4:45 PM
To: Law & Religion issues for Law Academics
Subject: RE: EC & Compelling Interest

When the Ct strikes down a law under the EC, it usually declares
the law unconstitutional w/out any type of "scrutiny." Why doesn't the
Ct at least go through the motions of applying the compelling interest
test? Is the EC an absolute, categorical rule prohibiting laws that
establish religion?

Take the Nativity display in Allegheny County--should the county
govt argue that it has a compelling interest in recognizing that many
persons are willing recipients of the county's speech recognizing that
some of its citizens are celebrating a religious holiday on Dec 25? Why
should the Pl, whose liberty is not in any way restricted by a passive
holiday display, have the right to censor a display that means a great
deal to others in the community who wish to view the display? Why not at
least analyze the compelling interest test in cases like these?

I have always assumed that the EC here is a structural
limitation on the power of govt, one that denies govt the power to
"endorse" religion even if it has good reasons to put up the display.

Am I wrong?

Rick Duncan

"Volokh, Eugene" wrote:

Rick asks an excellent question; the doctrinal
answer seems to be that some behavior -- such as coercion of religious
practice -- is categorically unconstitutional, with no strict scrutiny
exception, but the Court often talks about rights as being absolute and
then turns around and sets up some strict scrutiny exception (even if it
concludes that exception is inapplicable). Compare, e.g., Everson's
talk of no preference among religions with Larson v. Valente's strict
scrutiny for denominational discrimination (under the Establishment
Clause, in fact).

The tough question is to come up with a concrete
example of where some compelling interest would indeed be in play.
Rick, what examples did you have in mind?

Eugene

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Sunday, July 22, 2007 12:07 PM
To: Law & Religion issues for Law Academics
Subject: EC & Compelling Interest

A question for this august body of learned
friends:

When a state violates the EC, is this absolutely
unconstitutional or may the state attempt to show a compelling interest
to justify an establishment? Does any SCt case clearly focus on this
issue? Are there good law review articles addrsssing it?

Does it matter what kind of EC violation the
state has committed?

Cheers, 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.
________________________________

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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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_______________________________________________
To post, send message to Religionlaw at lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw

Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

  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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