Summum

[Brownstein, Alan]

Since this thread allegedly began with a focus on the Summum case, it might be helpful to focus the discussion on the core Establishment Clause issue raised by the case -- that of denominational preferentialism.

In that context, I find arguments about a heckler's veto to be unpersuasive. If a town has a nativity scene in the Park in front of City Hall, and a Jewish groups donates a Menorah to the town to be displayed in s similar location. If the town refuses to display the Menorah, the ensuing dispute bears little resemblance to a heckler's veto context. There may be a bit of an implicit heckler's veto to any equality claim to the extent that one way for the state to achieve equality is by eliminating  the benefit to the favored class, but equality claims can also be satisfied, of course, by extending the benefit -- and that is often the claimant's goal.

Moreover, the idea of a heckler's veto suggests that it is the fact that people oppose the speaker's message, standing alone, that justifies restricting the speaker's speech. That isn't the way we understand and apply other first amendment principles that require courts to make some determination about social reality, and it isn't a meaningful way to think about the endorsement test either. Speech isn't found to be fighting words just because someone claims that the expression made them angry enough to start a fight. Speech isn't found to be a threat just because someone claims that they were frightened by the message. Speech doesn't violate the Brandenburg standard just because someone claims that they were incited by the expression and the list could go on. The endorsement test requires some judicial evaluation of social reality -- just as these other tests do -- and some judicial determination of what constitutes an endorsement. 

This doesn't mean that the endorsement test is particularly easy to interpret or apply. But it involves more than a heckler's veto.

Alan Brownstein 
________________________________________
From: religionlaw-bounces at lists.ucla.edu [religionlaw-bounces at lists.ucla.edu] On Behalf Of Ira (Chip) Lupu [iclupu at law.gwu.edu]
Sent: Friday, March 27, 2009 8:52 AM
To: Law & Religion issues for Law Academics
Subject: RE: Summum

I can see that Rick just doesn't accept the idea that religion is constitutionally distinctive for purposes of non-coercive government support.  And, without an Establishment Clause, I suppose it's not.  So, in some towns, we'll get crosses on City Hall and "Christians welcome" signs.  (Recall that in my hypo, no one was told they were unwelcome, homophobes or not.)  I don't want to live in a town that would put a cross (or a Star of David, or other sectarian symbol) on City Hall, so I'm quite glad that the Estab Clause does apply to the states.

And once we return to the legal status quo, we're back to the question of religious distinctiveness.  As Doug says, the government may (sometimes must) have policies on war vs. peace, or civil rights of gays.  There is no reason for government to have a religious view.  Religious people are not "silenced" by this; they are free in the private sector to express their view.  But they don't get government amplification.

Eugene suggests that the "endorsement" test causes divisiveness.  I'm no fan of the test, but it's obvious that all Religion Claus litigation causes divisiveness; what does that prove?  Fighting in court over religion clause limits sees far less destructive of the polity than fighting in politics over whose faith gets amplified by the government.

I noticed that no one wanted to take on the idea that government is "under God," and not one with God, nor is it free to claim the loyalties associated with God.  That's the core here, not the idea of "offense," to which Rick endlessly returns.

Chip

---- Original message ----
>Date: Fri, 27 Mar 2009 08:22:09 -0700 (PDT)
>From: Rick Duncan <nebraskalawprof at yahoo.com>
>Subject: RE: Summum
>To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
>
>   I think Eugene makes a great point about the
>   divisiveness caused by the endorsement test.
>
>   When you enjoin a governmental religious display
>   (such as the Nativity scene I keep "harping" about),
>   you don't merely silence the govt. You also impose
>   silence on the willing audience (private citizens
>   who wish to see the display). These are many of the
>   same people who were told to avert their eyes when
>   they were offended by the Gay Pride display. This
>   adds insult to injury, and results in people
>   reasonably feeling like outsiders who must play a
>   "heads you win tails we lose" game with their
>   secular counterparts in the marketplace of ideas.
>
>   Rick Duncan
>________________
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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
_______________________________________________
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