Of Phelps and Persecution

[Brownstein, Alan]

Picking up on Marci's comment, suppose a town enacted an ordinance that prohibited the display of signs or banners that held the decedent up to contempt or ridicule (or expressed the message that the decedent deserved to die or was unworthy to be mourned) within 1000 feet of a burial service. Something like the law at issue in Boos v. Barry, but with the goal of protecting the privacy and dignity of the service and mourners. It is a content discriminatory law and should be subjected to strict scrutiny. Does the state have a compelling interest in protecting grieving family members and friends so that they can bury their dead in peace and without offensive disturbances?
 
Alan Brownstein 
________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of Hamilton02 at aol.com
Sent: Fri 11/2/2007 3:24 PM
To: religionlaw at lists.ucla.edu
Subject: Re: Of Phelps and Persecution


Chris Lund has put the cart before the horse here.  Measuring the neutrality of the law according to whether the organizations' assets are exhausted is backward.  Strong impact of a neutral law does not prove by itself that it is not neutral -- it just may prove that the religious entity acted in ways that severely harm others.  It is simply a fact that religious organizations -- just like businesses -- may cause such harm that losing all of their assets even falls short of what they should owe society for what they have done.  Thus, the impact of the law may well prove a lot more about the wrongdoing within the organization than the law's neutrality.  It is not unconstitutional for a religious organization to be put out of business by the operation of neutral, generally applicable laws when the behavior has been as execrable as the behavior is here.
 
Now, if the tort law ONLY impacted religious organizations and no secular organizations (like the law banning sacrifice in Lukumi), there might be some argument about neutrality, but I have yet to see the tort law that is directed solely at or works only against religious organizations.
 
For what it's worth, the speech issue in my view is limited solely to place analysis.  Those arguing that there is something especially problematic in the delivery of this personal message against a family at this location are very persuasive.  If this group wants to make these points on the apron in front of the Supreme Court or other public place removed from the family's observance, they deserve protection, despite the ugliness of their message.  Doing it in physical proximity of a mourning family observing their religious obligations to their dead is a very different matter.   The First Amendment does not guarantee anyone the optimal location for speech, even when the speech is otherwise highly protected.
 
Marci
 
 
Marci A. Hamilton
Visiting Professor of Public Affairs
Kathleen and Martin Crane Senior Research Fellow
Program in Law and Public Affairs
Woodrow Wilson School
Princeton University

	The Hare Krishnas and Unification Churches faced similarly devastating verdicts because of IIED and invasion-of-privacy claims brought by private individuals who wanted their destruction, and that reflected how neutral and generally applicable tort rules could combine with jury discretion to be devastingly non-neutral.  If I'm remembering Doug Laycock's Remnants piece right, all of Krishna's land holdings in the United States were put into receivership to secure just one of the judgments.  

 



________________________________

See what's new at AOL.com <http://www.aol.com/?NCID=AOLCMP00300000001170>  and Make AOL Your Homepage <http://www.aol.com/mksplash.adp?NCID=AOLCMP00300000001169> .
-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: application/ms-tnef
Size: 6686 bytes
Desc: not available
Url : http://lists.ucla.edu/pipermail/religionlaw/attachments/20071102/35d4e152/attachment.bin