EC & Compelling Interest

Mon Jul 23 16:05:54 PDT 2007

Isn't the whole point of the EC that the government cannot be permitted
to be a "willing speaker" when it comes to God-talk?  And isn't this the
reason why a per se analysis is more consistent with that purpose than
any compelling interest test might be?  The EC contains its own
compelling interest, doesn't it?  And isn't that compelling interest
essentially freedom FROM religion?  (Why, for the sake of discussion,
should X's freedom OF religion trump Y's freedom FROM religion?  And
isn't it true, therefore, that large claims of freedom OF religion, of
Free Exercise, should be viewed with a great deal of suspicion
especially given the categorical nature of the EC, of freedom FROM
religion, whereas there is no comparable categorical freedom OF
religion?  Of course my Protestant Empire thesis provides a useful way
of assessing both freedom FROM and freedom OF religion claims.  I have
another Protestant Empire piece coming out shortly which looks at this
problem in part through the lens or prism of proselytizing in the public
schools and elsewhere.) 

Isn't it also true, therefore, that to characterize the objection to the
display as a "heckler's veto" begs the question to be decided?  If the
government cannot be a willing speaker then the "censor" is not the
"heckler" but is the EC itself.  It is interesting to recall that the
pre-Incorporation common school religion cases divided on this point.
The state courts that upheld prayer and Bible reading in public schools
almost always characterized the objectors as "hecklers."  The minority
of state courts that struck down or limited these practices never used
such terminology in describing those who objected to these religious
exercises.

Was the pre-Incorporation state court minority right when it struck down
or limited Bible reading and prayer in the public schools? Were Engel
and Schempp correctly decided?

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Monday, July 23, 2007 5:14 PM
To: Law & Religion issues for Law Academics
Subject: RE: EC & Compelling Interest

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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