That's the headline on a CNSNews.com article. But if you look closely at what Judge Sotomayor actually did, the headline — and some other statements of the rest of the story — doesn't really fit. (Note that the CNSNews article has been linked to by quite a few other sources.)
Here's what happened in the case: Kristopher Okwedy's Keyword Ministries made a deal with a billboard company to put up the following billboards on Staten Island:
Word on the StreetGuy Molinari, Staten Island Borough President, responded by sending a letter to the billboard company that said:
4 WAYS TO SAY LEVITICUS 18:22
THOU SHALL NOT LIE WITH MANKIND AS WITH WOMANKIND: IT IS ABOMINATION (KING JAMES)
YOU SHALL NOT LIE WITH A MALE AS WITH FEMALE: THAT WILL BE LOATHSOME (JAMES MOFFAT)
DO NOT LIE WITH A MAN AS WITH A WOMAN: IT IS DETESTABLE (BERKLEY VERSION)
HOMOSEXUALITY IS ABSOLUTELY FORBIDDEN FOR IT IS AN ENORMOUS SIN (LIVING BIBLE)
I AM YOUR CREATOR
For the last two days we have attempted to contact your office, without success ....The billboard company then took the signs down. Okwedy and Keyword Ministries then sued Molinari for violating the Free Speech Clause, the Free Exercise Clause, and the Establishment Clause. (There was also an Equal Protection Clause claim, but that was in essence the same as the Free Speech Clause claim.)I write regarding the recent appearance on two of your Staten Island billboards of four translations of Leviticus. As you are probably aware this particular biblical verse is commonly invoked as a biblical prohibition against homosexuality.
The sponsor for the billboard message is nowhere apparent on the billboard, so I am writing to you with the hope that I can establish a dialogue with both yourself and the sponsor as quickly as possible.
Both you and the sponsor of this message should be aware that many members of the Staten Island community, myself included, find this message unnecessarily confrontational and offensive. As Borough President of Staten Island I want to inform you that this message conveys an atmosphere of intolerance which is not welcome in our Borough.
P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them. I call on you as a responsible member of the business community to please contact Daniel L. Master, my legal counsel and Chair of my Anti-Bias Task Force ... to discuss further the issues I have raised in this letter.
What did the Second Circuit panel, on which Judge Sotomayor was a member, do? It held in some measure for Okwedy on his Free Speech Clause claim. It reasoned (in my view quite correctly) that "Plaintiffs’ Free Speech Clause claim turns on the question of whether Molinari’s letter ... was an unconstitutional 'implied threat[] to employ coercive state power to stifle protected speech,' or a constitutionally-protected expression by Molinari of his own personal opinion." And it reversed (again, in my view quite correctly) the district court's conclusion "that Molinari’s letter was constitutionally-protected speech because the 'letter ... was not reasonably susceptible to a threatening interpretation, and [Molinari] did not have regulatory authority over PNE’s business.'" The panel concluded that
[A] jury could find that Molinari’s letter contained an implicit threat of retaliation if PNE failed to accede to Molinari’s requests. In his letter, Molinari invoked his official authority as “Borough President of Staten Island” and pointed out that he was aware that “P.N.E. Media owns a number of billboards on Staten Island and derives substantial economic benefits from them.” He then “call[ed] on” PNE to contact Daniel L. Master, whom he identified as his “legal counsel and Chair of my Anti-Bias Task Force.” Based on this letter, PNE could reasonably have believed that Molinari intended to use his official power to retaliate against it if it did not respond positively to his entreaties. Even though Molinari lacked direct regulatory control over billboards, PNE could reasonably have feared that Molinari would use whatever authority he does have, as Borough President, to interfere with the “substantial economic benefits” PNE derived from its billboards in Staten Island.
The panel also issued an accompanying unpublished opinion rejecting the Free Exercise Clause and Establishment Clause claims. For both, it reasoned — again, in my view quite correctly — that Molinari's action was aimed at the anti-homosexual aspects of the message, not the religious aspects of the message. This meant that there was no Free Exercise Clause violation; as the Supreme Court's landmark Employment Division v. Smith decision held, religion-neutral laws are generally not violations of the Free Exercise Clause even when they're applied to people who have religious motivations for their actions. (The possible "hybrid claims" exception [see pp. 664-65 of this article if you want to know more about it] would in any event not apply, since it had been rejected by the Second Circuit by the time Okwedy was decided.)
There was also no Establishment Clause violation, for much the same reason; as the district court said (and on this the Second Circuit unpublished opinion endorsed the district court), " The letter responds to the message, not the religious source of the message. As plaintiffs acknowledge, the billboards were deliberately erected to convey an anti-homosexual message, and they were placed where plaintiffs believe that a substantial number of members of the gay community and their supporters would be exposed to it. That plaintiffs used a quotation from the Bible to convey their message does not give it extra protection, or insulate it from criticism by public officials." These are easy decisions given the Court's Free Exercise Clause and Establishment Clause caselaw, which is probably why the panel decided that they weren't worthy of a published opinion.
So the CNS headline, "Sotomayor Supported Censoring Biblical Verse on Homosexuality from New York City Billboard," strikes me as at the very least quite likely to mislead readers. "Supported censoring," I think, is likely to make people think that she rejected the group's Free Speech Clause claim, and (to quote the second paragraph) "upheld a lower court's ruling ... against" the claimants. But the panel reversed the lower court's ruling against the claimants, and concluded that if indeed the government official was "censoring" the verse in the sense of threatening reprisals — as opposed to exercising his own free speech rights to condemn the speech — that would have violated the Free Speech Clause.
What's more, later on the story further errs by saying, "In their 'summary order' the judges ruled that the district court was correct to dismiss Okwedy’s claim that Molinari’s letter violated free speech rights." The summary order (that's the unpublished opinion I mentioned earlier) didn't uphold the district court's free speech ruling; it upheld its Free Exercise Clause and Establishment Clause rulings, and the published opinion reversed the free speech ruling.
Later in the opinion (in paragraph 20, by my count), the story acknowledges that the panel reversed the district court on something ("DePrimo also noted that the court issued two different opinions on the case, dismissing most of the case with the summary order, but writing a published opinion on one portion of the case that was sent back to the district court") but doesn't says that this reversal was on the free speech issue. Only in paragraph 29 does the story acknowledge that in "the court's written opinion, ... Okwedy's free speech claim was returned to the lower courts for a new ruling," and quotes Prof. William Marshall as saying that "The part that I saw, the speech piece of it, is a very pro-religious expression piece."
I think that the panel on which Judge Sotomayor sat handled the case quite correctly (though I'm sure that I'd disagree with Judge Sotomayor on lots of other issues in lots of other cases). But even if one disagrees with the panel, it seems to me that the description in the CNS News story is quite misleading.
Related Posts (on one page):
- "Sotomayor Supported Censoring Biblical Verse on Homosexuality from New York City Billboard":
- Family Research Council on the Okwedy v. Molinari Case:
The problem, I suppose, is that you do have to read past the statement of facts and notice what the holding is. Is that what the 1st year of law school teaches?
Well, that's more likely than a beautiful, assertive woman throwing herself at your feet, anyway.
But what's even less likely is that a website that bills itself as
would try do anything but misrepresent the facts in the most damaging way possible short of libel.
Along similar lines, the dirt that People for the American Way is throwing at Ricci himself disgusts me. I sure doesn't help that organization's credibility.
You missed the distinction between the legal power to remove the billboard and the social pressure that can (quite consistent with the 1A) be brought to bear. For instance,
The only remaining question is did Mr. Masters use or threaten use any government power in the furtherance of his request that, despite the law not requiring such behavior, this guy act like a human being?
First "Conservative News Service" and more recently "Cybercast News Service". Either way it's a Republican mouthpiece.
So Leviticus commands women to be lesbians?
"For both, it reasoned — again, in my view quite correctly — that Molinari's action was aimed at the anti-homosexual aspects of the message, not the religious aspects of the message."
The anti-homosexual and religious aspects are too intertwined to make this statement. All the Abrahamic religions are anti-homosexual, and I don't we can separate the two aspects.
When you get a letter from a Borough president who writes,you can be sure he's operating in his capacity as a government official and not a private citizen. Did the letter come on city stationary?
Moreover when the letter says,you can be sure your business is being threatened. As a former long-term resident of NYC, who knows how things operate there, I can assure you this letter is a threat.
"Not welcome" can mean you will swim with the fishes unless you do what we want.
The anti-homosexual and religious aspects are too intertwined to make this statement. All the Abrahamic religions are anti-homosexual, and I don't we can separate the two aspects.
Interesting.
So, if PETA protests a "Pork- the other White Meat" billboard, we only look at the First Amendment (Free Speech) claim,
But if the Imams and Rabbis Intefaith Council of America protest it, we have to view it as an Establishment Clause case as well, because Islam and Judaism are anti-pork?
So the level of protection speech gets depends on the religion of the speaker, and not the content of the message?
Yes, clearly someone was just inches away from being murdered here. Right.
Look, the billboard company realized they have a public image and terminated the contract that was doing them more harm then good. Free marketers should revel in a self-regulating system.
Read the whole paragraph you quoted. If you don't understand how it explains away your objection, read it again.
How does the direct involvement of a government official make it self-regulating?
If the letter had come from, say, a prominent Staten Island businessman who threatened to terminate his advertising with the company if they kept the billboard up, or a consumers group who planned to boycott all the other products advertised, that would be on thing. But the actual letter is pretty much saying, "That's a nice little billboard company you guys are running. Shame if something were to happen to it..."
"Yes, clearly someone was just inches away from being murdered here. Right."
You're taking me much too literally. The threat was of course a threat to business.
"Free marketers should revel in a self-regulating system."
Free markets likely had little to do with the removal of the billboards. Unlike the rest of the city, Staten Island residents are very conservative. It's the one place in the city where a billboard like that would enjoy popular support. Molinari himself is conservative and very much an old world ethnic type. My guess (and it's only a guess) Molinari had his palm greased to write the letter. I'm sure he loves money more than he hates gays. New York City is all about making money to the virtual exclusion of everything else.
Unless things have really changed since I lived there, most everyone from the other boroughs wouldn't set foot in Staten Island. You take the ferry for a joy ride and come right back. I went there one time to ship my car out to California. It might as well be on the dark side of the moon.
Again let me say that things might be entirely different today with respect to Staten Island sociology. The high rents in the other boroughs might very well have caused a big migration to SI of people favorable to gays. If that's the case, then I agree with you.
I understand that. I'm going beyond Molinari's actual intention to a more general issue. As I write above, Molinari real intention little to do with either religion or homosexuality. He might not have even composed the letter himself.
Loki has put his/her finger on the problem with the judicial system's interpretation of the free exercise clause. I has tacitly made the free exercise clause a subset of the free speech clause. The clear answer to Loki's question is yes. If it is not the free exercise clause of the First Amendment is "mere surplusage."
To illustrate, if a religious institution condemns homosexuality in a legal atmosphere which (like Canada) has defined such condemnation as "hate speech" and has prohibited it, they have no protection from the free speech clause because "hate speech" is excluded from the protection of the free speech clause and the fact that it is religious speech conveys no additional Constitutional protections under the free exercise clause.
This has already happened in the withdrawal of funding from religious assoications that oppose homosexual conduct or abortion.
What you see as a bug, others see as a feature. Religions are many and varied. While I am not sure that I would go as far as Scalia (need an Est. Clause violation + another Constitutional Violation!), I still believe that, for the most part, neutral laws of general applicability that happen to unfairly burden a religion should not be held hostage to that religion.
The withdrawal of (government) funding? Well, you don't have to take government funding. Liberty University, for example, followed that path. But the question is- where would it end? Should we allow Moslem woman to take drivers license ID photos with their faces covered? Wouldn't these require inquiries by the government (the courts) into what constitutes a "true belief" of that religion?
I don't want religion in my government, or government in my religion. I think they're both better off without each other. I think there's a separate, and interesting, question about what to do as government gets more intrusive in our lives- but hey; you can always go the Amish route and disentangle yourself, I guess.
Most every New Yorker knows about the image Staten Island has (had) in the other boroughs, especially Manhattan.
Check out the demographics at Wikipedia. They have a table comparing SI to the rest of the city and state. As you can see SI is different. But under "culture," we see,Looking the the population table, we see some significant population growth since 1970. So we need more information about the neighborhood the billboard appeared in. It's really possible SI had added a lot of gay friendly people over the last 30 years. On the other hand, billboards usually appear in older, lower middle class ethnic neighborhoods and not yuppified places.
"I don't think you want to go there."
We go where logic takes us. I don't reject an argument just because some liberal (or conservative) made it.
I don't think the government actually prohibited stem cell research, it just limited funding-- private parties were free to pursue stem cell research if they paid for it. But yes I see some merit to the liberal argument that a law might be imposing a religious doctrine. These things have to be thought through carefully.
Thou shalt no use the lords name in vain.
Never claim God said something unless he told you directly.
Interestingly enough, the use of "man" referred to mankind. I believe it means that when a fat guy says.. "How do I look", you should tell him the truth. Fat.
Only if they're smokin' hot. Anything so right can't be a sin.
Or one could take the other option and make it seem just overly viscious by putting a message on it with a photo of a black man and white woman holding hands, and displaying the Levitican prohibition against "breeding mules."
One of the Ten Commandments says "don't bear false witness." Does this make perjury laws unconstitutional?
Guys, you have any single sisters I can date?
Suppose I think, for completely secular reasons having nothing to do with religion -- say I sociological studies to back me -- that social groups that have common religious doctrines are more stable and harmonious than societies that don't. Suppose I also have a sociological study that the doctrines and practices of the Methodist church result in more social harmony by some eminiently secular sociological harmony index than other relgious doctrines and practices. Then under this view, wouldn't it be perfectly permissable for me to establish the Methodist church and require everyone to attend its worship services and study its doctrines and to ban all other religious teachings? So long as my motivation for my actions is not religious, the Establishment clause isn't a problem, and any incidental effect my actions may have on religion are simply of no constitutional concern. After all, my ban on all religions but one addresses only on the secular effects of religious pluralism vs. monolithism. Because it is based on and addresses only the secular affects, it simply doesn't reach the religious aspects. So courts needn't bother themselves with worrying whether my secular-based decisions might have any impact on those aspects -- that's not their concern.
If the "secular" aspects of a religious doctrine can really be separated from its "religious" aspects and expression of the religious doctrine banned because of those secular aspects, why isn't the above scenario a logical, and likely, outcome?
After all, this case simply is that outcome one doctrine at a time. If it can be done one doctrine at a time, why can't it be done all at once?
There are a number of neighbeorhoods in Jerusalem -- and Brooklyn -- where one sees such billboards regularly, although the posters are sometimes in Yiddish.
Were we absolutely certain then that arguments against slavery were nothing but a bunch of religious-based hate? Indeed we were. But just because we felt certain didn't mean we really were.
Molinari's letter went beyond a mere comment. He acted under color of authority to intimidate a business over the content of its billboard. If he wrote something like, "your billboards are ugly and detract from the the scenery," or "your billboards are obscene," I would not see that as a 1A infringement. But he took what amounts to a political position. Surely citizens can rent billboard space to announce a political position.
I think he also went even beyond a free speech issue because condemnation of homosexuality is a core belief in at least orthodox Judaism. It seems to me that preaching against sin is one of the prime functions of a religion. If you can't do that, how do you have freedom of religion? Others are free to put up billboards explaining why homosexuality is not a sin too.
It's not that clear cut, but I do agree with EV that a reasonable person might reach that conclusion, which is why the case was remanded on that count.
No is disputing the right of a citizen to display his politics on a billboard. The question is whether Molinari's letter improperly interfered with that right. And, again, Sotomayor's 2d Circuit panel found a reasonable basis for concluding Molinari went over the line. So what are you complaining about?
You also said earlier:
and
I agree with Frank Cross' criticism of your analysis, but it's actually all beside the point. You criticized EV for commending Sotomayor's application of the law as it is, but all you've argued is why you think the law should be other than it is.
Textualist interpretation: Lie with men differently than you would lie with a woman. There is no ban there, it's just a requirement that things be varied.
As one isotope of hydrogen to another, let me give a shoutout to my unstable brother TRITIUM
That's funny.
For your hypothetical law to square with the Establishment Clause, it couldn't mention the Methodist church, or religion in any manner. It would have to instead say the government requires people to join a social group that produces the most harmonious society. A particular application of the law might incidentally result in requiring memebership in the Methodist chruch.
Of course, such a law would still violate the First Amendment's protection of Association rights.
Wouldn't your view of intertwinement between secular and religious concerns argue "yes", and frankcross's view of independence of secular and religious concerns argue "no"?
Seems to me frankcross has it right.
Looks like, that's "the case," Zarkov. From the ruling:
I think God gave us Volokh, Kerr and Somin to balance Limbaugh, Zarkov and Zywicki.
There is no question that the borough president's letter is a veiled threat -- he did not need to remind the billboard company that it "owns a number of billboards on Staten Island and derives substantial economic benefits from them," nor did he need to make a legal issue out of it by calling on the billboard company to contact his "legal counsel." Maybe he could be prosecuted under RICO laws.
At first I was wondering how the billboard message's sponsor got a hold of the letter, but then I realized that the billboard company probably showed the letter to the sponsor in an effort to justify the billboard company's action.
"You criticized EV for commending Sotomayor's application of the law as it is, but all you've argued is why you think the law should be other than it is."
I'm critical of the idea that in this case we can cleanly separate political speech from religious conduct. It seems to me that weaning people away from sinful behavior is the essence of religious conduct. Putting up a message on a billboard aimed at a community of sinners constitutes a form of preaching. We don't always preach to just the faithful do we? When we can't get the sinners to come to us, we have to go to them-- hence the billboard.
The Second Circuit Panel has tried to frame the issue as one of simple intolerance for homosexuals. But if the idea of "hate the sin, love the sinner" operates here then the Second Circuit has it wrong. Suppose Keyword Ministries had put up a billboard that said "Don't shoplift" and quoted the Ten Commandments. Is that intolerance against kleptomaniacs? Suppose they put up a billboard that said "Don't steal that car radio." Would that be intolerance against blacks who suffer the invidious stereotype of car radio thieves? I think there is a strong argument here for a violation of the Free Exercise clause.
When I first read this post I was puzzled as to what was going on. But that was before I knew for sure that Staten Island undergone a demographic change. Now I see that it's possible that Molinari was bribed, pressured or otherwise induced to act a surrogate for pro homosexual and anti religious interests. As such it's quite possible he sought not only to suppress speech, but religious conduct as well.
"There is no question that the borough president's letter is a veiled threat..."
I'm not so sure it's even "veiled." I'm not suggesting that Molinari was threatening to send a bunch of gumbas around to cut the billboards down, but the tone of the letter clearly indicates he was going to do something to PNE. Note also the reamark, "For the last two days we have attempted to contact your office, without success ...." It's over the telephone that the real threats are made. Frustrated Molinari had to write a letter where he had to be a little careful.
"I think God gave us Volokh, Kerr and Somin to balance Limbaugh, Zarkov and Zywicki."
Don't put that on a billboard.
No problem. Simply specify things in a way that can apply to nothing other than a single church without ever mentioning it by name, same way Congress regularly gives individual corporations tax breaks by specificying "general" facts (incorporation date and state and the like) without ever having to mention the corporation by name.
After all, tax laws have to be general. But the tax code situation amply demonstrates that a general "generality" requirement isn't a real requirement at all, just a requirement that Congress engage in certain formailities. If it does those formalities, it can do anything it wants.
Professor Volkh hasn't suggested anything that would imply that there is any reason to interpret "generality" for Establishment Clause and Free Exercise purposes any differently from the way it is done for tax purposes. He appears to have simply assumed that "generality" is some sort of real requirement, something that actually limits government action in some sort of real way. But the existing interpretations of generality do not support such an assumption.
"Looks like, that's "the case," Zarkov. From the ruling:"
Absolutely. I could believe a gay community in Sausalito California, but Staten Island? Initially it seemed completely out of character. But after little googling, I see that the place has changed from when I knew it. You have to understand that for many decades SI was the one conservative borough and very different from the others.
I do not know if Mr. Molinari is a supporter of slavery or not. But his conduct evidences obsequeous imitation of the practices of our nation's slaveholders successfully used to perpeutuate it form many decades. He took guidance from the practices of our Nation's slaveholders to ensure they could remain at ease in Zion by preventing "hateful" opposing thoughts from being expressed, and hence from having their merits be conceived of, considered, or rationally evaluated by the public.
If he is not an actual supporter of slavery, he ought to know enough to take care not to be confused for one. If he cotinues to ape slavery's supporters this obsequiously and to take this sort of close doctrinal guidance from slavery's strategists, he will have some difficulty being taken seriously if he attempts to represent himself as an opponent.
People who oppose slavery simply don't behave this way. They know about the importance of free expression in preserving people's ability to turn around thinking on entrenched views and "institutions". They also know about the importance of religion and in particular the courage religious people have sometimes had to confront established views based on what they find a higher morality in spearheading the opposition to slavery and in guiding the strategy for its eventual demise. Anti-slavery people know in their bones that free speech and freedom of religion are the bedrock of liberty and its greatest weapon, its most terrible swift sword..
But Mr. Allioti wants the world to know that doesn't know this. He doesn't get it. He doesn't bother to know about slavery and he doesn't bother to care about it enough to learn. People who know and care know and care not to behave this way.
Mr. Allioti needs to do some explaining for behavior that sure seems to walk, waddle, and quack like page one from the pro-slavery playbook. If he hasn't been dabbling in that playbook, if he doesn't have a fondness for its ideas, if he isn't helping to have that playbook played again in our society, why has he been caught behaving like someone who is?
You continue to advocate what you'd like the law to be in the name of criticizing the 2d Circuit's application of the law it's required to follow.
That's a pretext for targeting the church, and thus fails under Employment Division (specfically cited by Volokh to support laws of general applicability that only incidentally affect religion as being permissible). The same standard doesn't apply to tax law because targeting a specific corporation doesn't violate the Free Exercise clause.
The Sotomayer court ruled that Molinari's letter could be seen as an implied threat, and that this had a chilling effect on the plaintiff's speech, and overruled the trial court, right?
So what's the problem?
If you're saying, "Well, we would prefer if the plaintiff had prevailed on establishment clause grounds" what difference does it make, if the plaintiff prevailed anyway?
And isn't the basis of Molinari's threat determinative in deciding which clause of the First Amendment was violated? If Molinari was trying to chill political speech, wouldn't that make it a speech clause violation, and not an establishment clause violation? In a case involving a government bad actor, wouldn't the motive of the bad actor and the nature of his bad act be important elements in deciding which aspect of the plaintiff's First Amendment rights were violated?
I apologize if that was a different commenter.
"... but wasn't it Zarkov who proposed genocide as the solution to Somali piracy?"
Absolutely not. But I think you are on the wrong thread.
Well, in order for that to happen, "general" has to have a special meaning specific to the Religion Clauses context that is stricter than what it means in other contexts. Doubtless Judge (now Justice) Alito was picking up on this issue when he wrote his opinion for the 3rd Circuit in Police v. Newark, saying that the Lukumi Bablo Aye decision implied that "general" has a beefed-up meaning different from other contexts and that courts need to police legislative claims that their laws are "general" with a substantial degree of skepticism and a higher-than-normal standard for what it means for a law to be "general".
Professor Volokh, you've generally disagreed with Police v. Newark's very narrow interpretation of the Smith opinion (Police's requirements for considering a law to be "general" are so strict that it would appear relatively few laws would pass them. Given this, how would you prevent the "generality" requirement from degenerating (pardon the pun) into something like the tax code situation?While I recognize Police v. Newark is very strict and I can conceive of a spectrum of standards on the subject, your view that this case has no Religious Clause implications becuase the state's concerns are general suggests you are interpreting "generality" in a way different from anything I could conceive. It seems to me this case is very close to the Tax Code situation, i.e. close to using a subterfuge definition of "generality" that gives it little practical effect as an actual requirement.
What is your actual view? Would you offer an intermediate "generality" requirement — something that has some teeth, but is less onorous to the State than the Police v. Newark approach? And if so, why your particular intermediate approach and not some other?
I don't see how this case fails to meet either the Lukumi or Mustafa standards for generally applicability.
Say, whatever happened to Somali piracy anyway?
Did shooting a few in the head discourage them? By gar, pirates were made of sterner stuff in the old days!
Perhaps. But one could certainly interpret the billboard as saying that everyone should hate gays people because they violate scripture. That would be an actual call for hate and possibly violence.
In this hypo, the billboard is targeted not at gays to change from being gay to being straight, but to all other straight people to shun gays for being an abomination.
What would you say if I put up a billboard that says, Blacks are more likely to be criminals, so avoid them if you can. Free speech rights?
1. Do you accept my hypothetical, in which the state can establish a single religion so long as it bases all its actions on genuine and demonstrably non-subterfuge secular motivations?
2. Why should Smith, which was a Free Exercise Clause case, be applied to the Establishment Clause?
3. The Lemon test added an additional prong for Establishment Clause cases, whether the government action would result in excessive government entanglement with religion, which your proposed approach would remove. Why should Lemon be overridden and the Smith approach substituted for it? If you are not overriding Lemon, how can your view of the Establishment Clause be reconciled with it? It seems rather odd to think that giving churches money for secular reasons is entangling, but telling them what they can say for secular reasons is not. Is that really what Lemon results in?
4. Your proposal would appear to overrule a longstanding "ministerial exception" or "internal affairs" jurisprudence, in which courts have refused to apply generally applicable secular laws to the internal affairs of churches on grounds that this would involve excessive government interference with religion. For example, courts have refused to apply discrimination and wage and hour laws, among others, to disputes between churches and ministers. Would your result be different if ecclesiastical entities were involved as distinct from private individuals, or do you think the various "ministerial exception" cases such as the Supreme Court's decision in NRLB v. Catholic Bishop of Chicago were simply incorrect?
Surely under your view a billboard that says "end racism" is actually and must be interpreted as an incitement to hatred of racists.
Would you agree the First Amendment poses no barrier to banning such a billboard? Or is there an exemption for billboards whose targets you hate yourself? Perhaps people you hate are not entitled to the protection of the law?
I must have missed that. I'm not aware of the Bible using the words gay, straight or even homosexual. The ad used the latter, but all I saw was an ad that says "Guys -- don't engage in sex with another man; the Bible says it's an absolutely forbidden action that G-d finds disgusting." I must have missed the part that says "and therefore, because G-d says it disgusts Him, it's up to you to shun and physically attack anyone who you think might have a desire to do such a thing."
Someone earlier said that whether it is free speech depends on how one reads the message. I'm simply saying that one could easily read this as an admonition to hate gays. Perhaps not you, but we do know that many people use the Bible as the excuse for violence against gays.
For instance, two men in Redding, CA, were convicted of breaking into the bedroom of a gay couple and shooting them to death. They said that they were doing God's work and that God would reward them for killing gays.
This happens much more frequently than you think -- Frontline did an entire episode on men on Death Row who killed gay people. Half the people interviewed had no regrets for killing gays and said they would do so again, exactly because they say their religion -- based on those same passages -- requires it.
"So when someone reminds me that gossip is Biblically prohibited, he is acutally calling for me to physically attack gossipers?"
The problem is I have never heard of anyone attacking anyone because they were a gossiper. However, the FBI is filled with stats that show gays have been attacked, beaten and sometimes even killed, and the justification is those same biblical sentences.
I like free speech and support it. I don't know violence against gays, and I don't like to anyone incited to violence based on religions texts. Therefore, I have no easy answers. But I do hope that you understand that violence against gays is real and is often prompted by passages such as those.
If not for the Living Bible translation there would be no problem or shouldn't be.
The Bible is saying nothing about homosexuals. It is talking about homosexual ACTS.
Being homosexual isn't a sin.
Doing homosexual acts is.
But it would not have made any difference anyway. Same thing would have happened. Total intolerance by Gays and Libs.
Just waiting for the case of a Pastor charged with Hate Crimes for preaching LEVITICUS 18:22 in his church on Sunday. After all the charge would have nothing to do with religion. I believe it has happend in Canada. It shouldn't be to long before it happens here. Then what will you say?
Randy, thank's for your answer. I don't mean to minimize the problem of crimes against gay people. Unfortunately, many people have used the Bible as the excuse for violence against all kinds of people. The problem is not the Bible or those who quote it; the problem is people who are looking for an excuse to commit violence.
While I do not disagree that it may be consistent with Supreme Court jurisprudence, (Free exercise jurisprudence is almost as convoluted as EC), I do have to highlight a basic conundrum highlighted by your post.
You say that the message was aimed at the "anti-homosexual" aspect of the message, and not the "religious" aspect. However, the only text on the billboard, essentially, was a bible verse. It is hopefully uncontroversial that the Bible is a religious text. So the court is essentially parsing the difference between "a message from a religious text" and a "religious message."
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