Summum

[Rick Duncan]

I appreciate Alan's many good points about the EC. Of course, we all discuss all of these points when we cover the EC in our classes.

My post about Alito's opinion in Summam--in which he describes the government's ability to choose its own message and its own viewpoints as essential to the conduct of government--and then says oh, but religious speech by government is different, raises a different issue which I think also deserves discussion in the classroom.

Certainly, religious equality is important, but so is cultural equality and political equality.

Imagine two passive displays in a public school--one is a nativity scene recognizing the fact that many in the community are celebrating Christmas, and the other is a gay pride display which says "support gay equality and stop homophobia."

Both of these displays are challenged by students who find them offensive--the nativity display by  student A who is offended by the  schools "endorsement of religion" and the gay pride display by student B, a conservative Christian who is offended by the school's endorsement of the message that his religious belief about human sexuality is wrong and must be "stopped."

Many of you would agree with Justice Alito that the government has a right to take a position denouncing "homophobia" and that we would deny an essential part of government's power if we allow student B a heckler's veto enjoining the government's right to express its message. So long as the government does not coerce student B into affirming his support for the government's viewpoint, his remedy is to avert his eye rather than to silence the government and those who wish to receive the government's message about gay rights.

But not so with student A and his objection to the Christmas display. Even though his liberty is in no way deprived by a passive display recognizing a religious holiday being celebrated by many in the community, he has the right to censor government speech endorsing religion. Suddenly, government speech is not so essential and is subject to a heckler's veto by anyone who takes offense.

If Alito is right and the essence of government is to speak out and take the viewpoints of its choice on issues that come up in the marketplace of ideas, why should the EC be interpreted as protecting a non-liberty interest of hecklers to censor religious viewpoints expressed by state and local governments?

Because student A feels like an outsider as a result of the state's nativity display? But doesn't student B, the religious "homophobe," feel even more like an unwanted outsider when the state endorse the gay pride display and the message that "homophobia" such as his religious beliefs must be stopped?

We all cover the issues Alan raises. But I suspect many of us do not point out the contrast between those offended by the government's secular speech and those offended by the government's religious speech. And even if you accept that the EC is properly incorporated as a "liberty" interest under the 14th Amendment, what explains the Court's many cases protecting non-liberty claims under the judicially-created endorsement test. The endorsement test is a structural test, not a liberty-protecting test.

I think it makes teaching the EC far more interesting when you ask some of these hard questions about the endorsement test as applied via incorporation to the states, and point out the contrast between what Alito's says about government speech in general and what he says only a sentence or two later about the EC as a limitation on the government's power to choose its messages.



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


"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting 
the vote."--Ben Franklin (perhaps misattributed, but still worthy of Franklin)

"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.

--- On Thu, 3/26/09, Brownstein, Alan <aebrownstein at ucdavis.edu> wrote:

From: Brownstein, Alan <aebrownstein at ucdavis.edu>
Subject: RE: Summum
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Date: Thursday, March 26, 2009, 10:29 AM

Just a few quick points.

1. There is nothing in Justice Alito's comments that limit his remarks about government speech to "passive" government speech. Government can say what it wants to say actively or passively. If government has unlimited discretion in communicating its own messages and that power is not limited by the Establishment Clause, why can't government proselytize in favor of particular faiths.

2. You could substitute spending for speech in most of Alito's comments. Government has tremendous discretion in deciding how it will spend its money. This power is not limited by the Free Speech Clause. But many of us would argue that the Establishment Clause constrains the government's power to subsidize the religious activities of particular faiths and not others.

3. Government may express passive messages in places other than public property. Suppose the government purchased a large cross and requested permission to locate it on the grounds of a particular church that it favored. Would that violate the Establishment Clause? If the government can single out a particular faith community's religious message and adopt it as its own and dedicate public property as the site for the communication of that message -- all in the name of unrestricted government speech -- why can't the government create its own religious display and exhibit it on private property that it selects (with the owner's permission)?

4. While I certainly appreciate the argument that government attempts to influence the religious beliefs of the community through government speech implicate religious liberty interests, I would have thought that the obvious value at issue in the Summum case was religious equality. The government adopts the religious message of one faith community and rejects the religious message of a different faith community. The analogy here would be a city that adopts religious displays to celebrate Christian holidays, but refuses to accept displays celebrating the holidays of other faith communities. The question raised by Summum that the Court alluded to -- but did not directly address -- is the extent to which the Establishment Clause limits this kind of government preferentialism.  I suspect some of Rick's students may raise this point even though it is is not suggested by his comments.

Alan Brownstein
________________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Rick Duncan [nebraskalawprof at yahoo.com]
Sent: Thursday, March 26, 2009 8:22 AM
To: Law & Religion issues for Law Academics
Subject: Summum

Here are some thoughts of mine I am sharing today with the students in my Con law Seminar in which one of the students is presenting today on Summam:

I was re-reading Summum this morning, because Mark is going to give his presentation on the case this afternoon. And here is something that struck me about Justice Alito's opinion.

He starts off giving a tribute to the essential nature of government speech. He says:

-- "the Free Speech Clause... does not regulate government speech"

-- "a government entity has the right to speak for itself"

--government is "entitled to say what it wishes"

--government may "select the views it wants to express"

--"It is the very business of government to favor and disfavor points of view"

--"it is not easy to imagine how government could function if it lacked this freedom"

--"To govern, government has to say something, and a First Amendment heckler's veto of any forced contribution to raising the government's voice in the 'marketplace of ideas' would be out of the question."

Yet, without missing a beat or apparently even being aware of the contradiction, Alito goes on to say that of course "government speech must comport with the Establishment Clause."

Why should this be so? Why should the Court be so ready to accept a "heckler's veto" against passive government speech--such as a nativity display in a public park acknowledging the fact of the Christmas holiday? Why should we think that the government's critically important right to say what it wishes and to express the viewpoints it chooses is subject to being enjoined at the whim of any citizen who is offended by the government's message acknowledging religion. How could the doctrine of incorporation, which protects only "liberty interests" against state deprivations, give a citizen the right to restrict government from "saying what it wishes" by means of a passive display that restricts the liberty of no one, since all one need do if one is offended by a passive display recognizing a religious holiday is to avert one's eye? Is the "endorsement test" a liberty-protecting test, or is it a structural limitation on government that somehow was mistakenly
 incorporated as a "li!
 berty" under the 14th Amendment?

These are the questions that keep me up late at night pondering the inconsistencies of the Court's treatment of government speech.


Of course, some will say religious speech by government is different, because the EC restricts the power of government to endorse religious ideas. But isn't that a structural limitation on government, as opposed to a protection of liberty? And how can a structural rule restricting the power of Congress under the First Amendment apply against state governments under a test that explicitly incorporates only "liberty" interests against state deprivations?

The thing about the Summum opinion that struck me so vividly was the contrast between Alito's tribute to the "right" of the state to say what it wishes as essential to the very nature of government and his casual acceptance of the EC as a limitation on the speech of the states. Heckler's vetos are bad except when they are good!

Just a few thoughts about a recent decision I thought I would share with the list.

Cheers.

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


"Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting
the vote."--Ben Franklin (perhaps misattributed, but still worthy of Franklin)

"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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