Interesting Religious Speech Case

From the Religion Clause blog:

In Burritt v. New York State Department of Transportation, (ND NY, Dec. 18, 2008), a New York federal district court issued a preliminary injunction preventing the state of New York from enforcing its regulations relating to highway signs against a businessman who displayed a large religious sign on his property adjacent to US Route 11 in northern New York. Daniel Burritt believes he has a religious duty to communicate the Gospel of Jesus in all aspects of his life, including his business. At issue was a sign displaying a religious message placed on the side of a semi-trailer parked on Burritt's property.

Under the New York regulations, a sign on the premises of a business identifying the business can be displayed without a permit even adjacent to a highway, but a special permit is needed where the sign visible from the highway carries a different message. In enjoining enforcement while litigation on a permanent injunction is pending, the court said in part:

The State has not demonstrated a compelling interest for the Sign Laws' restriction on "off-premises" signs.... Plaintiff's trailer sign is apparently adjudged an "illegal sign" not because of its location on his property or its dimensions, but because of its content. It seems that a sign containing the same physical characteristics as Plaintiff's trailer sign but announcing the name of his business, "Acts II Construction, Inc.: Building Bridges for Jesus," would be allowed under the regulations. The Court cannot see how aesthetics and traffic safety are protected by a sign that displays the name of business, but are jeopardized by a sign of the same size and location that contains a religious message.... [T]he regulations are not narrowly tailored to achieve the ends that the regulations are intended to achieve.

Alliance Defense Fund yesterday issued a release discussing the decision, including a photo of the disputed sign. (See prior related posting.)

Religious Liberty in Fiction

Religion Clause has an interesting post about a recent children's Christmas book. Here is a link about the book.

Here is the story from the Arlington Heights, Illinois Daily Herald:

Fictional book retells Wauconda water tower cross controversy

By Madhu Krishnamurthy | Daily Herald Staff

Published: 12/21/2008 12:02 AM

A roughly 20-year-old controversy over two crosses that once graced Wauconda's water towers hasn't yet made history books, but it's now immortalized in a fictional children's Christmas tale produced by area teenagers.

The book, aptly named "The Cross and the Water Tower," retells the 1989 story of how Wauconda officials were forced to remove the illuminated crosses from the towers under threat of a lawsuit by prominent Buffalo Grove atheist Robert Sherman.

Sherman backed some area residents who objected to the village displaying a religious symbol on a public structure. It stirred a debate that made national headlines.

The village ultimately replaced the roughly 10-foot-high crosses with a star.

Yet, in protest of the village's move, crosses started cropping up everywhere in town, on residents' front yards and in shop windows, many of which exist to this day.

"It was a fun memory growing up," said 17-year-old Rita Weiss of Lake Zurich, who helped research the book. "I always thought it was a beautiful story, and I always wanted to go look for the crosses in Wauconda. We would take special trips to see them."

Weiss and her cousins decided their favorite bedtime story made the perfect Christmas fable to pass on to future generations.

Researched, written and illustrated by the children of Wauconda area residents who lived through the episode, the book is being distributed through Amazon.com and several area churches. Soon, it is expected to be available in area book stores. It also can be ordered through the Web site thecrossandthewatertower.com.

"We interviewed dozens of residents," Weiss said. "We went to a lot of local shops and asked them what they thought about it, talked to a lot of local churches and pastors. It was just neat to hear their different memories and what they thought about it and stuff. I'm really happy about how it turned out."

The book is dedicated to the 1989 residents of Wauconda for being an example.

Longtime Wauconda resident Rosemary Mers, formerly the owner of Mers Restaurant now called Docks Bar & Grill off Route 176, is acknowledged in the book's foreword. One of the original lighted crosses removed from the tower was placed on the roof of the family's restaurant.

Mers said the replacement star is a victory for the town's Christians.

"The star is a symbol of Christ's birth and that's what Christmas is all about," said Mers, 76. "It was a hard thing for all of us to take. But we didn't feel we lost any battle. We really felt like in the long run Wauconda won."

Sherman, now 55, sees the star on Wauconda's water towers as a triumph for atheists, too. The five-pointed star to atheists and other secular groups represents the birth of the sun, he said.

Sherman said the residents' protest with crosses was "a festival of religious freedom."

"By me forcing the government to stop doing religion for the Christians, the Christians did it by themselves," he said. "That's the way it's supposed to be in the United States."

Yet, Sherman doesn't agree with the children's book's depiction of what happened.

"The reason that it is a book of utter fiction is that it does a complete role reversal because at that time it was the atheists and our supporters who were polite, courteous, pleasant but firm," he said. "And it was the Christians who were rude, arrogant, nasty and hostile. It completely reverses the behavior and character of the key players, and of the debate. It's a good piece of reverse psychology."

Equal Access Case

From the Religion Clause blog (link):

In Idaho, six students have filed suit in federal district court against Boise State University challenging University rules that preclude student religious organizations from receiving funding from student activity fees. The University contends that the exclusion is required by the provision in Idaho's Constitution (Art. IX, Sec. 5) barring state monies from going to religious institutions. Plaintiffs, represented by the Center for Law and Religious Freedom, say that the University policy amounts to viewpoint discrimination in violation of the free expression provisions of the U.S. Constitution. The complaint in Cordova v. Laliberte, (D ID, Dec. 17, 2008), and plaintiff's brief in support of motion for preliminary injunction are available online. Yesterday's Deseret News reported on the lawsuit.

The Rabbi's Tale: Ideas Have Consequences

Let me close out this course on Religion and the Constitution with a story told by Rabbi Daniel Lapin in his book The Severed Flower. I am quoting Rabbi Lapin:


". . . let me tell you what happened to one of my teachers, a great rabbi. On a trip to Israel he found himself seated next to the head of the Israeli socialist movement. As the plane took off, my teachers’ son, sitting several rows behind, came forward and said, ‘Father, let me take your shoes; I have your slippers here. You know how your feet swell on the airplane.’ A few minutes later, he came and said, ‘Here are the sandwiches Mother sent; I know you don’t like the airline food.’

This went on in similar fashion for some time, and finally, the head of Israel’s socialist movement turned to my teacher and said, ‘I don’t get this. I have four sons. They’re grown now. But in all my life I don’t recall them ever offering to do anything at all for me. Why is your son doing all of this?'

And the rabbi said, ‘You have to understand. You mustn’t blame yourself. Your sons are faithful to your teachings, and my sons are faithful to my teachings. It’s simple, you see. You made the decision to teach your sons that they are descended from apes. That means that you are one generation closer to the ape than they. And that means that it is only proper and appropriate that you acknowledge their status and that you serve them. But, you see, I chose to teach my sons that we came from God Himself. And that puts me one generation closer to the ultimate truth, and that means it’s only appropriate that they treat me accordingly.'"


Somehow, I think this story is a good capstone for this course because its about the power of ideas and the liberty to transmit those ideas to your children.

Good luck on your exams and have a great Christmas (or other winter holiday).

Final Exam Info

The Final Exam is a three hour (closed book) exam that counts for 300 points. The exam consists of two medium/longish essay questions (approximately 2000 words) and one medium essay question (1000 words). Here are some things you need to know:

1. All answers must be typed on a computer using Extegrity Exam 4 software. Check with Vickie in the Dean's Office with any questions about procedures.

2. If you need a lab computer, make sure Vickie knows.

3. Be sure to observe the maximum word limits for each question. If you go beyond the word limit, it will adversely affect your grade for that question. If I say "answer the question in approximately 2000 words or less" that means what it says. I use "approximately" to be flexible, so you don't have to stop in the middle of a sentence. 2025 words is okay;2100 words is not okay. Please don't abuse the flexibility that I give you by using the word "approximately."

Debate On Conlawprof List:County bans clothing with "disruptive or inflammatory language or content" in County buildings

Post One (Prof. Volokh):

Greene County, Missouri is banning "all individuals" from "wearing clothing, apparel, or other accessories containing disruptive or inflammatory language or content" in County buildings. Constitutionally permissible regulation in a nonpublic forum, or unconstitutionally viewpoint-based or vague?

Post Two (Prof. Wasserman):

Is Cohen v. California still good law? If so, this cannot be valid, at least in the main run of cases. Granted, that case analyzed outside the public forum doctrine, which had not yet assumed its central place. But it seems to be identical--disruptive or inflammatory language in a county building. This actually seems more blatant, since it is a direct regulation of speech, rather than a neutral law applied to speech.

Post Three (Prof. Volokh):

But Cohen rested on the law's being a general criminal law,
applicable everywhere. "Cohen was tried under a statute applicable
throughout the entire State. Any attempt to support this conviction on
the ground that the statute seeks to preserve an appropriately decorous
atmosphere in the courthouse where Cohen was arrested must fail in the
absence of any language in the statute that would have put appellant on
notice that certain kinds of otherwise permissible speech or conduct
would nevertheless, under California law, not be tolerated in certain
places." I would think that the nonpublic forum rules would be more
government-friendly, though perhaps not government-friendly enough to
authorize this restriction.

Thoughts? Vagueness issue? Is it reasonable in light of the purpose of the non-public forum?