Laycock's post on Santa Fe

Michael McConnell Mcconnellm at LAW.UTAH.EDU
Thu Feb 10 07:09:00 PST 2000

Like many on this list, I consider Santa Fe a close case, and can
imagine a persuasive opinion going either way. Much depends on how
the "facial" challenge is conceived. To me, what matter most is not
which side of the line this particular case falls on, but drawing the
line in the right place. On that conceptual issue, I have the
impression that there is not a huge difference between Doug Laycock
and Steffen Johnson. Both seem to agree that (1) the importance of
the event does not matter; (2) if the speech is controlled by the
state, it is unconstitutional; (3) if the speech is genuinely the
product of neutrally-selected private speakers, it is constitutional;
and (4) the mere fact (?) that there is a captive audience does not
require a different result.  Am I correct?

So, the hard questions are: (1) whether the definition of permitted
speech (focusing on "solemninzing" the occasion) is effectively code
for prayer (as some of us thought the term "ritual" was code
for religious in the Lukumi case); (2) whether an election is a
neutral basis for selection; and (3) whether to look at other
contextual factors outside of the face of the policy.

As to the second issue, Alan Brownstein argues that an election is
not a neutral means of selection, since it is standardless and could
lead to religious/majoritarian favoritism. There is logic to this
view. But I think it may be an unworkable proposition in a democratic
society. Article VI proscribes religious tests for office. This means
that there can be no advance restrictions based on religion. By
Alan's logic, however, mightn't this be interpreted as prohibiting
elections, or at least as prohibiting candidates from mentioning
their religion in the course of campaigning? (After all, majorities
could effectively vote on the basis of a religious test -- "vote only
for Christians.") That seems an unacceptable conclusion.

An alternative way to draw the public/private conceptual line is to
say that the "state action" consists in setting the qualifications
for office (including the student speakers in Santa Fe), and that
voting is private. By this theory, even if voting is religiously
non-neutral, it does not present a constitutional problem. In Santa
Fe, that means that the policy is facially constitutional (as far as
the second issue is concerned) so long as the terms of the election
for speaker are religiously neutral.

-- Michael McConnell (U of Utah)

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