"A Bible study group and a book club are not treated the same"

Volokh, Eugene VOLOKH at law.ucla.edu
Sun Jun 21 19:56:22 PDT 2009 

        What does this do, though, to the equality of speakers?  Rosenberger, Lamb's Chapel, and other such cases (rightly in my view) took the view that speakers expressing religious viewpoints must be treated the same as speakers expressing secular viewpoints -- just as speakers expressing pacifist viewpoints must be treated the same as speakers expressing pro-war viewpoints, and just as in most situations (at least when the government is acting as sovereign rather than as proprietor) even different subject matters of speech must be treated equally.

        Can it really be that speakers expressing religiously *motivated* viewpoints may be treated differently from speakers expressing secularly *motivated* viewpoints, while speakers expressing religious viewpoints may not be treated differently from those expressing secular viewpoints?  What if the policy in Rosenberger discriminated in favor of people motivated by secular beliefs, and against those motivated by religious beliefs -- surely that couldn't have been constitutional, right?  Why would the opposite discrimination be constitutional?

        Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> bounces at lists.ucla.edu] On Behalf Of Mark Graber
> Sent: Sunday, June 21, 2009 11:58 AM
> To: religionlaw at lists.ucla.edu
> Subject: RE: "A Bible study group and a book club are not treated the same"
>
> Can't answer the hypothetical, but we might note that the Draft cases during
> Vietnam suggest that elected officials might distinguish between the two.  If
> persons with religious objections to war may be exempted from the draft, but not
> persons who feel war is a bad policy choice, then perhaps legislatures might
> grant persons motivated by religion statutory exemptions from picketing bans, but
> not those motivated by non-religious motives (and Seeger makes clear that
> religious motives must be broadly construed).
>
> Mark A. Graber
>
> >>> "Volokh, Eugene" <VOLOKH at law.ucla.edu> 06/21/09 2:44 PM >>>
>         A hypothetical:  Alan wants to picket an abortion provider's home.  Betty
> wants to picket an anti-abortion leader's home.  Alan's motivation is religious,
> Betty's is secular philosophical.  The city has a content-neutral ban on residential
> picketing, and the state has a RFRA.
>
>         Can it really be the case that Alan would have a right to picket for religious
> reasons, but Betty wouldn't have a right to picket for secular reasons?  Or that
> both would have this right, because RFRA would require invalidation of the entire
> scheme, as the least restrictive means of serving both the interest in protecting
> religious objectors and the interest in preventing discrimination between religious
> and secular speakers?  (I assume that it's far from clear that a residential
> picketing ban would pass strict scrutiny, as opposed to the intermediate scrutiny
> applied in Frisby v. Schultz.)
>
>         Eugene
>
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> > bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan
> > Sent: Sunday, June 21, 2009 10:53 AM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: "A Bible study group and a book club are not treated the same"
> >
> > Good point, Mark. I think statutes like the one reviewed in Texas Monthly that
> > facially discriminate in favor of religious speech are going  to be struck down. A
> > more generic religious liberty statute, like a state RFRA, is more complicated.
> >
> > Let's suppose a city is told that it can not enforce its zoning ordinance against a
> > Bible study group because of a state RFRA. Then a book club challenges the
> > application of the zoning ordinance to its activities on the grounds that Bible
> study
> > groups had been held to be exempt from the zoning ordinance under RFRA.
> One
> > could argue that a court could resolve this dispute by refusing to allow the city
> to
> > enforce the zoning ordinance against the book club without giving the RFRA
> > statute a narrow construction. But is that the best result? Now other cities in the
> > state have to figure out how the state RFRA applies to their content neutral
> laws
> > that regulate speech and the extent to which exempting religious speech from
> > those laws under RFRA requires them to grant additional exemptions to other
> > speakers. It might make more sense to construe the RFRA law not to require
> > exemptions for religious speech.
> >
> > As an aside, I might add that when California was considering a state RFRA
> law,
> > proponents of the law conceded that it would not apply to content neutral
> speech
> > regulations in part because such applications would be unconstitutional.The
> > contrary argument, that RFRA would require the state and cities to privilege
> > religious speech, was a very hard sell politically.
> >
> > Alan Brownstein
> > ________________________________________
> > From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu]
> > On Behalf Of Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
> > Sent: Saturday, June 20, 2009 11:18 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: "A Bible study group and a book club are not treated the same"
> >
> > Or perhaps to strike down the refusal to extend the exemption to relevantly
> > similar nonreligious speech (though I suppose Texas Monthly may be in some
> > tension with that approach)?
> >
> > Mark Scarberry
> > Pepperdine
> >
> >   _____
> >
> > From: religionlaw-bounces at lists.ucla.edu on behalf of Brownstein, Alan
> > Sent: Sat 6/20/2009 9:14 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: "A Bible study group and a book club are not treated the same"
> >
> >
> >
> > I agree with Mark that Smith allows the political process to deal with religious
> > exemptions -- as long as those exemptions do not violate any other
> constitutional
> > guarantee. It may well be that the state has a choice as to how it can respond
> to
> > a claim that it discriminates in favor of religious speech. Instead of standing by
> > the discriminatory exemption -- which would require a court to invalidate it -- it
> > could generalize the exemption to apply to all expressive meetings. But if the
> > state refuses to extend the exemption, doesn't that require a Court to subject
> the
> > exemption to strict scrutiny and, presumably, to strike it down?
> >
> > Alan Brownstein
> > ________________________________________
> > From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu]
> > On Behalf Of Scarberry, Mark [Mark.Scarberry at pepperdine.edu]
> > Sent: Saturday, June 20, 2009 6:25 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: "A Bible study group and a book club are not treated the same"
> >
> > If Smith is going to be used to justify a constitutional prohibition on religious
> > exemptions, then it is even worse than I thought. But the point of Smith, as I
> > understand it, is precisely to allow the political process to deal with requests for
> > political exemptions. To the extent that land use laws applied in a supposedly
> > neutral way would prevent religious groups from meeting, it seems that the
> > granting of an exemption by the local government would be permitted by Smith.
> > Whether the granting of such an exemption then would require that similar non-
> > religious group meetings would need to be permitted is an interesting question
> > that could affect the outcome of the political process with respect to allowing
> > exemptions for religious meetings but should not invalidate such exemptions.
> At
> > least that's my initial take.
> >
> > Mark Scarberry
> > Pepperdine
> >
> >   _____
> >
> > From: religionlaw-bounces at lists.ucla.edu on behalf of Brownstein, Alan
> > Sent: Sat 6/20/2009 5:52 PM
> > To: Law & Religion issues for Law Academics
> > Subject: RE: "A Bible study group and a book club are not treated the same"
> >
> >
> >
> > If we had a constitutional regime that confers special protections for non-
> > expressive religious exercise against neutral laws of general applicability, the
> > issue of how to treat expressive religious exercise would require some difficult
> > line drawing and analysis. But since Smith controls the meaning of the free
> > exercise clause, there is no special federal constitutional protection for religious
> > exercise -- whether it is expressive or not. Under this regime a statute that
> > confers special protection for expressive religious exercise is going to confront
> > serious and unavoidable establishment clause and free speech clause issues,
> > isn't it?
> >
> > Alan Brownstein
> > ________________________________________
> > From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu]
> > On Behalf Of Bezanson, Randall P [randy-bezanson at uiowa.edu]
> > Sent: Friday, June 19, 2009 9:05 AM
> > To: 'Law & Religion issues for Law Academics'
> > Subject: RE: "A Bible study group and a book club are not treated the same"
> >
> > Let's see ... speech is fully protected, but religious speech is even more fully
> > protected, indeed advantaged.Can that be right?  Yes, if the Free Exercise
> > Clause confers special protections for religious speech exercise -- a not
> > implausible theory.  Yet I have always thought that the non-establishment
> clause
> > could justify greater or additional limitations on religious speech.  Could both be
> > true?  I don't see any reason why not since the two religious clauses are often,
> > though not always, at war with one another because they serve two distinct
> > purposes.
> >
> > Randy Bezanson
> >
> > -----Original Message-----
> > From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> > bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
> > Sent: Friday, June 19, 2009 10:05 AM
> > To: Law & Religion issues for Law Academics
> > Subject: "A Bible study group and a book club are not treated the same"
> >
> >         I haven't read the whole opinion yet, but in my skim I was struck by this
> line:
> >
> >         "The trial court appears to have been troubled that an operation which can
> > be and often is conducted for purely secular purposes could be entitled to
> > increased protection from government regulation if conducted for religious
> > reasons. But TRFRA guarantees such protection. Just as a Bible study group
> > and a book club are not treated the same, neither are a halfway house
> operated
> > for religious purposes and one that is not. Under Smith, the Free Exercise
> Clause
> > does not require strict scrutiny for religious activity affected by neutral laws of
> > general application,66 but TRFRA imposes the requirement by statute."
> >
> >         Is it clear that it's constitutional, given the Free Speech Clause and the
> > Establishment Clause, and the position of 6 of the votes in Texas Monthly v.
> > Bullock, for the law to treat Bible study groups better than book clubs?
> >
> >         Eugene
> >
> >
> >
> > From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-
> > bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
> > Sent: Friday, June 19, 2009 7:58 AM
> > To: religionlaw at lists.ucla.edu
> > Subject: Texas RFRA
> >
> > The Supreme Court of Texas has unanimously given the Texas RFRA its
> > intended meaning to provide real protection for exercises of religion.  Barr v.
> City
> > of Sinton, Link to opinion below.  The case involves a religious halfway house
> in
> > a small town in South Texas.  The city made no serious effort to prove a
> > compelling interest in closing the halfway house; its main argument seemed to
> be
> > that there was no burden because the halfway house could leave town, and
> that
> > that Texas RFRA should not apply to zoning anyway.
> > Most of the opposition to Texas RFRA was from neighborhood associations
> > worried about land use.  The lead sponsor in the House told me that if people
> got
> > the idea that this meant that black churches could locate in white
> neighborhoods,
> > the bill would be dead.  The compromise was to provide that cities would have
> no
> > less land use authority than they had had under federal law on March 17, 1990
> > (the day before Smith.)  The land use folks claimed that Sherbert and Yoder
> had
> > never applied to them; the bill's supporters claimed that Sherbert and Yoder
> had
> > been a generally applicable test that applied to all regulation, including land use
> > regulation.  The state supreme court just resolved that argument in favor of the
> > bill's supporters.
> > http://www.supreme.courts.state.tx.us/historical/2009/jun/060074.htm
> >
> > 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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