Government Must Exclude Religious Speech from Government Property, Writes Federal Judge

— it says so right there in the First Amendment. Well, somewhere in there. Doesn’t it?

Here’s the key excerpt from near the start of Judge Karlton’s concurrence in Faith Center Church v. Glover, a case in which the majority concludes (based on a more plausible argument, though one I think is still ultimately mistaken) that a library may exclude “religious worship” from a policy that opens library rooms broadly to “meetings, programs, or activities of educational, cultural, or community interest”:

This should be a simple case it asks whether the county can be forced to subsidize a religious organization’s prayer meetings by requiring it to provide the religious organization with
a free place to worship. A quick reading of the First Amendment to the Constitution of the United States should answer the question. Judge Paez’s opinion tracks the cases and reaches its laborious result because the law has so elaborated that the reaching of the conclusion requires the effort the opinion demonstrates. As I now explain, that elaboration is premised on a failure to accept the plain meaning of the First Amendment.

Both Good News Club v. Milford Cen. Sch., 533 U.S. 98 (2001) and Lambs Chapel v. Center Moriches Union Free Sch. Dist., 508 U.S. 384 (1993), turn on the High Court’s purported inability to distinguish between a sermon and a speech. That distinction, however, is compelled by the First Amendment, which establishes different standards relative to government action concerning speech and government action concerning religion. The purported inability of the High Court to adhere to the distinction embodied in the First Amendment leads it to conclude that the issues tendered by cases, such as the one at bar, implicate viewpoint discrimination under the free speech provisions of the First Amendment. They simply do not. As the First Amendment notes, religious speech is categorically different than secular speech and is subject to analysis under the Establishment and Free Exercise Clause without regard to the jurisprudence of free speech.

This is quite a remarkable and, in my view, entirely unsound argument. Consider the text of the relevant part of the First Amendment:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press ….

A “quick reading” of the “plain meaning” of the text reveals, I think, two relevant things. First, the Amendment bars “establishment of religion,” a term that is hardly self-defining. At the very least, it’s far from obvious that including religious speakers evenhandedly among many nonreligious beneficiaries of a government program — including religious speech and even worship within the category of “meetings, programs, or activities of educational, cultural, or community interest” — constitutes an “establishment of religion.” There’s just nothing “plain” about the meaning; some (though a minority on the Court) have read the phrase this way, but it’s hardly something that a “quick reading” reveals.

But a quick reading does reveal that the First Amendment protects “freedom of speech,” with no limitation to “secular speech.” That the pre-semicolon part of the Amendment protects “the free exercise” “of religion” hardly “plain[ly]” keeps the post-semicolon part from protecting “speech” and “press” both secular and religious. It’s certainly quite sensible to read the first clause as the Court has read it — protecting the exercise of religion generally (whether against discriminatory burdens or against all burdens), including religious conduct as well as religious speech, and limiting the stablishment of religion (whatever that means) — and at the same time to read the second clause as the Court has read it, which is protecting speech generally, including nonreligious speech as well as religious speech.

One may surely argue for the “wall of separation between church and state” interpretation of the Establishment Clause (which Judge Karlton later endorses), or the particular subinterpretation under which this “wall” mandates discriminatory exclusion of religious speech from generally available programs. One may even argue, though few Justices have, that religious speech cases should be analyzed “without regard to the jurisprudence of free speech.” But most certainly this is not an argument that can be gotten simply through a “quick reading” that grasps the provision’s “plain meaning.”