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Friday, May 09, 2014

Establishment and disagreeable speech

Let me try a slight twist on Rick's take on Town of Greece. I was struck by the following line from Justice Kennedy's plurality:

Adults often encounter speech they find disagreeable; and an Establishment Clause violation is not made out any time a person experiences a sense of affront from the expression of contrary religious views in a legislative forum, especially where, as here, any member of the public is welcome in turn to offer an invocation reflecting his or her own convictions.

The first clause is true, but too facile for two reasons. First, the disagreeable speech we encounter comes from private speakers, not from the government or with the government's imprimatur. Saying that the cost of citizenship is hearing another member of the polity utter disagreeable words is simply in the nature of free expression. And that carries over to other private expressions of religion, where any member of the public can express their own convictions.

Of course, sometimes that disagreeable speech comes from the government and we have to deal with that, even if it makes us feel excluded, much as we have to deal with disagreeable government policies (at least until the next election). But that leads to my second concern. Having an Establishment Clause means that religious speech is different, that government cannot express disagreeable or exclusionary ideas in this area. It is an open question when, exactly, an establishment occurs (which is Rick's point). The point is that it is not as simple as Kennedy suggests in saying "you can always express your own views"--the government's involvement changes the metric.

Posted by Howard Wasserman on May 9, 2014 at 11:13 AM in First Amendment, Howard Wasserman | Permalink


Howard -- have you read Corey Brettschneider's book, "When the State Speaks?" It -- like a lot of Abner Greene's work -- gives "the State" a lot of leeway to speak, advocate, express, persuade, subsidize in order to move people to the State's (i.e., the liberal state's) values. Nelson Tebbe also did a paper on "Government Nonendorsement", which took the "endorsement test"-type thinking outside the specifically religious area: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2125243

In my view, for what it's worth, it's not no clear that "having an Establishment Clause means that religious speech is different," because I think it is an unresolved question whether "speech" by government (unbacked by coercion or direct support) very often amounts to an "establishment" of religion. But, of course, mine is not the leading view when it comes to this! Best, R

Posted by: Rick Garnett | May 9, 2014 1:54:15 PM

Rick: I probably should have presented my normative biases on this. I have not read Corey's book, but I share the view that government has that leeway to express itself. By prohibiting an establishment of religion by government (certainly the Feds and, for most people, states and municipalities), but not other non-religious ideas and expression, it carves out a limitation on what ideas government can promote.

I agree that it is disputed just *when* government religious speech becomes an establishment--in fact, I think that is the point of contention. I just think Kennedy gives that dispute too short shrift.

Posted by: Howard Wasserman | May 9, 2014 2:18:58 PM

This reminds me of the somewhat depressing oral argument.

The federal government had part of the argument time to support the locality but didn't go far enough for Kennedy. Kennedy seemed to confuse this as some sort of open forum where religious speakers had open reign. His plurality showed this isn't so -- it set forth certain limits.

This was right after a portion where he raised the problem of worrying about the content of prayers, so admittedly, a reader might be a bit confused. Anyway, like Kagan noted, the quotation is a bit of a strawman, since merely being upset about some content isn't the point of the challenge. It is that as a whole, the practice had an effect of promoting sectarian religion.

Also, the "anyone" bit doesn't really reflect the practice that occurred. A post over at Balkanization by Prof. Laycock is telling there. This wasn't merely some sort of open mike deal though even that might be problematic if the net result was the same.

Posted by: Joe | May 11, 2014 1:10:55 PM

Note that if this were an undergraduate class on 'business law' or 'law for managers', etc., Kennedy would have failed that question.

The worse thing is that it's not because he doesn't know better.

Posted by: Barry | May 12, 2014 9:26:22 PM

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