The very first two paragraphs of the casebook's introduction to Religion and the Constitution (p.1763) says that the Free Exercise and Establishment Clauses call for "a single ideal of government neutrality in matters of religion." It then goes on to pose a "common example" of a state university permitting a wide range of student groups to meet on campus for the purpose of speaking on political or social issues.
Thus, young republicans, young democrats, feminist groups, LGBT groups, the ACLU group, environmental groups, and others are all allowed to meet on campus to express their views. What does neutrality require when a religious group, say, Campus Crusade For Christ or a Muslim student group, wishes to participate in the student group forum on campus?
If religious groups are excluded, "does this constitute discrimination against religion in violation of the free exercise clause?" If religious groups are allowed access, "is the state subsidizing religious worship in violation of the establishment clause?" Does it make sense to understand the EC to forbid what the FEC requires? Does the First Amendment contain one religion clause or two? If one, is it at war with itself? If two, are they mutually inconsistent?
If the two clauses taken together require "a single ideal of government neutrality in matters of religion," then what does neutrality require? If neutrality towards religion is the goal of both clauses, is there any conflict between the Free Exercise and the Establishment Clause here? Does an "equal access" rule subsidize religion? Or does it subsidize free speech in a neutral marketplace of ideas open to all? If religious groups are excluded, is anyone's liberty burdened? If religious groups are permitted equal access with all other student groups, is anyone's religious liberty burdened?
The web log for Prof. Duncan's Constitutional Law Classes at Nebraska Law-- "[U]nder our Constitution there can be no such thing as either a creditor or a debtor race. That concept is alien to the Constitution's focus upon the individual. In the eyes of government, we are just one race here. It is American. " -----Justice Antonin Scalia If you allow the government to take your liberty during times of crisis, it will create a crisis whenever it wishes to take your liberty.
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I. Tinker A student's right to speak (even on controversial subjects such as war) in the cafeteria, the playing field, or "on the...
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Monday August 28 : Handout on Moore v Harper (PDF has been emailed to you); Originalism vs. the "Living Constitution": Strau...
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Jack Phillips of Masterpiece Cakeshop (art by Joshua Duncan) "We may not shelter in place when the C...
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