Agreeing with Lorence

Since I've been bashing Jordan Lorence of the ADF for the last few days, I should also give credit where credit is due when he's right, and this post about a new 9th circuit ruling is on the money. In a 2-1 ruling, the 9th circuit overturned a lower court's preliminary injunction on behalf of a church group that was refused the right to use a local library meeting room on the same basis with other community groups. The ruling makes an absurd distinction between religious worship and religious speech, even while admitting that religious worship is protected free speech. The case is now remanded to the lower court to actualy hear the case and hopefully the result will be the same and the appeals court will uphold that result. Again, the principle really is quite simple: if you're going to open public property up to community groups, you can't limit it solely to non-religious groups. I don't know why this is so difficult.

Update: Even when they're right, the STACLU crowd can't stop themselves from vastly overstating and distorting the meaning of this ruling. Jay's post on this case declares "9th Circuit Bans Religious Expression From Public Libraries". Nonsense. First of all, the ruling was over whether the district court should have granted a preliminary injunction in the case. The appeals court said no and remanded it back to the lower court. Even if the appeal of this decision fails, the court still has to hear the case and the lower district court is almost certainly still going to find for the plaintiffs in the case. It will then go back to the appeals court where it will be heard by a different group of judges, and frankly the law is on the side of the church.

But even without all of that, even if this was the final word on the matter, the ruling still doesn't "ban religious expression from public libraries". At worst, it allows public libraries to place limits on what kinds of activities its rooms may be used for. It would not ban religious expression, it would only allow such decisions to be made locally. I agree that the ruling is wrongheaded, and I think the case will actually turn out the other way once it works its way back up. But the fact that it's demonstrably a wrong decision is exactly why there's no need to exaggerate its importance or distort what it actually means. These guys just don't seem to care at all about accuracy, only about outlandish rhetoric.

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Although I belong to both Americans United for Church/State Separation and the Freedom From Religion Foundation, I have to agree with you on this one. My general rule of thumb is to imagine the same scenario with the "other side" in the same situation. If the group refused a library meeting space were the Atheists & Agnostics of Wisconsin, say, would I think this a violation of free speech, or a reasonable limit under the circumstances? And *would* they refuse an atheist group under the rules they have now?

It looks to me like the Bertrand Russell Appreciation Society would be allowed, but not a Bible Study. Nope, not right.

Sorry, on this one I entirely disagree, if the facts are as you state. If the library was to be used for a religious ceremony, the library should have every right to bar its use. (If it was just a question of having a meeting of a Church connected group, of having Bible study, of having a Church social that is different, and I would agree with you.) There is an obvious distinction between a ceremony intrinsic to the practice of a religion and speech.
(If there were no distinction, why is there a need for a seperate clause in the first amendment, since all religious services involves speech.)

Given that STACLU has commented should we assume the ACLU have taken a position aggreeing with this outcome or would that be crediting them with too much rationality? From what I know of other cases, I would think they would likely have been on the side of the church in this onee.

By G. Shelley (not verified) on 21 Sep 2006 #permalink

I think that using the Library as a Church on the cheap, hides the argument some. Now if a Wiccan or Druidic group asked the Library for the same priviliges and got turned down, and then petitioned the Judge to be a party in the lawsuit, I think that the positions on all sides would shift a bit.

Personally I would accept either argument, if it were evenly enforced, but I suspect even the Christian group might have trouble with their argument, if Wiccans were holding services ten minutes before them and a different pagan group were there ten minutes after, and a Muslim group signing up for the room five time a day in perpetuity.


The reason there is both a free speech clause and a free exercise clause is that the latter covers far more than speech, and because in light of their experience freedom of religion was a particularly important right to protect. But in this case, the distinction religious speech and religious worship isn't terribly relevant. The legal standard deals with viewpoint discrimination, not the form of speech being used.

The reason there is both a free speech clause and a free exercise clause is that the latter covers far more than speech, and because in light of their experience freedom of religion was a particularly important right to protect.

This is actually a point I've been wanting to take up for some time: What exactly is covered by free exercise that is not covered collectively by free speech, free press, freedom of peaceable assembly, inviolability of the home, habeus corpus, etc.?

It seems to me that explicitly mentioning religious practice as protected either signals that religious practice is protected above and beyond - say - political speech, or is in clear violation of Ockham's Razor.

From where I'm standing, there seem to be two inheirent problems with that:

Firstly, I can think of legitimate religious excersise that would not be covered by other civil liberties. Thus, explicit mention of religion conveys the impression that freedom of religious practice is more far-reaching than other civil liberties.

For instance, it is clearly both constitutional and legitimate to prohibit libel and slander. But if you couch your libels and slanders in religious terms, a case can suddenly be made that libel and slander laws do not apply, because religious speech is protected in ways that go above and beyond ordinary free speech. Not a very good case, I admit, but a case none the less.

Or, to take a less open-and-shut example, a case could be made that it is constitutional to prohibit lying in advertismen. Would such a law (assuming it was not unconstitutional on free speech grounds) require a religious exemption for televangelists?

If religious speech is protected above and beyond ordinary free speech, then a rather compelling case could thus be made that televangelists are allowed to defraud people as long as they couch their fraud in religious gibberish.

Or take a faith healer, who advocates medically unsound practices. Assuming that this could be forbidden without violating freedom of speech (which I very much doubt, but let's go with the notion for the sake of the argument)

Now, personally, I think that if someone is stupid enough to fall for a televangelist or faith healer, it's their money, their health, and their problem.

Nevertheless, these two groups of frauds are clear examples of people who use their target audience's superstition to make a buck - I see no indication that they would be above using the same superstition to game the law.

My second concern is that explicitly protecting religious practice - even when the protection extends no further than the other civil liberties - makes it less likely that the ordinary civil liberties will be enforced: It is usually easier to draw a bright line saying 'religious practice here,' than to take on a messy argument over free speech and the limitations thereof.

Thus, we often (at least in Europe) see lawsuits over matters that would clearly be covered by freedom of speech waged over freedom of religion. The problem with this is fairly obvious: It deprives the public record of a precedent case (re)establishing freedom of speech - not to mention the possibility for creating conflicting precedents.

And that's leaving quite aside the issue of symbolism: I find it a most unhealthy signal to send that religious expression is somehow different from ordinary expression - it is precisely this kind of implied dualism that (mis)leads people to conclude that religion should be subject to some special 'respect' or overt veneration.

Of course, all of these concerns would be moot if there is even one example - contrieved or otherwise - of acceptable and legitimate religious practice that is not covered by the other civil liberties (of course, that would then raise the issue of why that practice isn't covered).

- JS

There are many things that are covered under the free exercise clause that are not covered under the free speech clause. For instance, the free exercise clause includes what the courts call the ministerial exception, which exempts churches from laws that might interfere with direct doctrinal matters. For example, even if you have a law forbidding discrimination on the basis of religion, you cannot force a Christian church to hire a Muslim minister (or even a minister from a different Christian denomination). It also means that ministers have little legal recourse against the church in terms of labor laws (several cases have refused to allow church employees to sue under NLRB or EEOC law or policy, and under Title VII). The courts have also upheld the Religious Freedom Restoration Act (as applied in Federal law, but not in state or local law), which led, for example, to this year's ruling allowing an exemption from the Controlled Substances Act for a Native American group using hallucinogenic tea in religious ceremonies.

Now, whether it should provide those protections to religious beliefs and behavior and not to non-religious beliefs and behavior is another question. I think the answer is both yes and no, depending on the circumstance. In particular, I think it depends upon the strength of the state interest at stake. I generally agree with the RFRA and their various state law cognates, as I have written here before. That is, I would allow religious exemptions to generally applicable laws as long as doing so does not impede a legitimate state interest (and by impede, I don't just mean "be in conflict with"; I mean unless granting such an exemption would prevent the achievement of such an interest). To make it more specific, I am fine with religious exemptions like the one involving hallucinogenic tea above, or from discrimination laws, and so forth. In the first place, I favor the legalization of all drugs, so I don't see prohibition as a legitimate interest. In the second case, we can allow such exemptions, for example for religious adoption agencies, without impeding the compelling interest the state has in facilitating the widest possible number of adoptions into good families. However, I would not exempt a religion from child abuse laws. A religion that engages in ritual child beating to get the demons out - and there have been many such cases - should not be granted an exemption from such laws because the legitimate state interest is in protecting each and every child from being abused. An exemption would destroy that legitimate interest.

Like it or not, the founders did single out religion and religious belief for extra protection. Certainly we know that they favored freedom of conscience in general, but they went out of their way to single out religious freedom as being of particular importance. This was no doubt a result of their experence, from watching the collusion of church and state combine to produce a great deal of oppression and barbarism around them. For Madison, in particular, it was the sight of Baptist ministers being thrown in jail for nothing more than preaching their faith in an Anglican state that motivated him to place freedom of religion at the forefront of his mind. One can hardly blame them.

The most interesting question on your list, I think, involves religious fraud. My friend Dan is thinking about doing a law review article on that subject and I think it's a very interesting question. The only Supreme Court case I know of on this question is US v Ballard, a 1944 case that decided that while the courts could not rule on the question of the truth or falsity of a religious doctrine, they could rule on whether a person's claims in that regard were sincere or not. If there is evidence of insincerity, that may be used as evidence of fraud, but the truth or falsity of the belief itself could not. But that's not much to go on. It's a very fascinating open question in legal scholarship.

I've only skimmed part of the opinion, but, reading between the lines, I suspect that the concern of the Library and the 9th Circuit was the fact that the plaintiffs in the case had expressed an intention to make regular use of the library's meeting rooms (every two months), instead of just every once in a while on an irregular basis. That would be pretty much in line with the prohibition on use of the meeting rooms for school activities that are part of a curriculum. Religious services are usually intended to be held on a regular basis ad infinitum, which is not necessarily true of programs that might include religious speech--such as the Lamb's Chapel case, in which the programs were to be limited in time.

In a broader context, I suspect that the library's regulation was intended to discourage use of its meeting rooms in any substantial competition with meeting room facilities that may be provided by private companies. More than a few hotels, for example, provide meeting room facilities, for a fee, of course, and presumably the plaintiffs in this case could make use of their facilities for their regular meetings. The thought that the library does not want to be in any substantial competition with private companies that provide meeting room facilities would also be suggested by the library's charging a fee when the meeting rooms are used for sales or solicitations.

AFAIC, it's not an open and shut case for the plaintiffs.

Ed, I've heard a lot of ridiculous rhetoric from the religious right, but you should listen to what Benjamin Bull says about this case on in interview with the Point of View radio show last Friday.

The mp3 is available here:

The Antioch case is discussed starting at 28:00 minutes in, and says that "Christians have been ordered to the back of the bus" and just like "in the 1940s in the deep South... no equal treatment, we have separate water fountains (almost), we have separate meeting rooms... Before you know it, you'll have to get Judge Karlton's permission to get up and go to work in the morning."

Right-wingers go crazy when the gay community compares their efforts to the civil rights struggles of African Americans in the 60s. So this sort of talk from the chief council of the Alliance Defense Fund is sheer hypocrisy, not to mention a ridiculous distortion of the truth.

Feel free to post this anywhere you can -- Bull deserves any adverse publicity he gets for his idiotic remarks.