John Blakeman - BIBLE IN THE PARK: Federal District Courts, Religious Speech and the Public Forum (Law, Politics, and Society)

THE
B IBL E
IN THE
P AR K

Series on Law, Politics, and Society

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John C. Blakeman, The Bible in the Park: Religious Expression, Public Forums, and Federal District Courts

Religious Expression, Public Forums,
and Federal District Courts

J OHN C. B LAKEMAN

The University of Akron Press
Akron, Ohio

Copyright 2005 John C. Blakeman

All rights reserved

All inquiries and permissions requests should be addressed to the publisher,
The University of Akron Press, Akron, OH 443251703

Manufactured in the United States of America

First edition 2005

09 08 07 06 05 5 4 3 2 1

Library of Congress Cataloging-in-Publication Data

Blakeman, John C., 1966

The Bible in the park : religious expression, public forums, and federal district courts / John C. Blakeman. 1st ed.

p. cm. (Series on law, politics, and society)

Includes bibliographical references.

ISBN 1-931968-13-6 (cloth : alk. paper)

1. Freedom of speechUnited States. 2. Freedom of religionUnited States. 3. Public spacesLaw and legislationUnited States. I. Title. II. Series.

The paper used in this publication meets the minimum requirements of American National Standard for Information SciencesPermanence of Paper for Printed Library Materials, ANSI Z39.481984.

T he past two decades have seen a significant amount of excellent scholarship on the links between religion and politics. Studies of religion and politics span diverse social science approaches and methods, and indeed are often interdisciplinary in nature, with roots not only in political science, but also economics, sociology, and the law. We now have clearer pictures of the relationships between, for instance, religious belief (and the intensity of that belief) and voting behavior, religiously based interest groups and public policy, and indeed the relationship between religious doctrine and litigation concerning religious liberty under the First Amendment. That religious values and beliefs affect local, state, and national politics is not exactly unique to our political system, but outside observers of American politics are often struck at how a progressive, advanced, liberal democracy such as ours can still allow religious conviction to influence our basic public policy debates and choices. To be sure, scholars of religion and politics have rigorously shown how and why religion affects our polity, and many have recently argued that the divide between religion and politics, between the sacred and the public, is diminishing.

This book adds to the literature on law, religion, and politics in the United States by focusing on federal district courts, which are oft-overlooked political institutions that truly play an important role in mediating conflicts between religion and politics. District courts are the trial courts in the national judicial system, and as such are front-line policymaking institutions charged with adjudicating a wide range of legal disputes, especially those concerning federal and constitutional law. As courts of first resort, district courts weigh evidence, apply the law, and render decisions that most likely will not be appealed through the appellate hierarchy. That process of weighing evidence and applying the law is, for social scientists, a policymaking process in which the outcomethe courts decisionis influenced by many different things.

Here, the links between courts, religion, and politics are explored in the context of one specific type of litigation: public forum disputes that concern religious speech. Public forums are publicly owned spaces that are often open to expressive activity and to which access is regulated by local, state, and federal governments. Public forum law is grounded in the First Amendments Free Speech and Assembly Clauses, and was created by the Supreme Court to reflect that public properties serve as gathering places for speech-related activities. Public forum law is complex and changing, and importantly covers a wide variety of public spaces, from local public schools to government buildings and parks. Judges are often charged with applying public forum law to a myriad of places in order to determine if those properties are open to individuals or groups that wish to express a message.

Since the early 1970s litigants have linked public forum law to the expression of religious messages, and have turned to federal district courts to resolve tricky disputes over when and under what circumstances the government can limit access to a public space to someone wishing to proclaim a religious message to the public. Public forums are not only open to speech and expression; they are often places where the public tends to congregate. What better place, then, for a speaker wishing to get his or her religious message to as many people as possible?

This study of federal district courts and religious speech was prompted by a larger study of district courts and religious liberty that I am coauthoring and which is still very much under way. While collecting data on all religious liberty cases in federal district courts for the past forty years, I noticed a trend of cases, beginning in the early 1970s and not abating yet, that concerns religiously motivated speech in public places. More specifically, the trend of cases concerns plaintiffs who wish to publicly express their religious message, and government refusals to allow it. In a sense, then, this book on district courts and religious speech started as, and is intended to be part of, a larger project concerning district courts and religious liberty broadly construed.

With this book on district courts and religious speech, I am interested in basic case outcomes, and my research is driven in part by the following questions. When, for example, do courts allow religious speech into public forums? Do courts prefer some types of religious expression, such as the distribution of religious literature, to others? Do courts prefer some types of religious messages, such as proselytical, evangelical Christian speech, to others? Do interest groups or the types of litigants appearing in lawsuits influence district court policymaking? I am also interested in what social scientists term litigant symmetries. For example, who sues? Who defends? Which levels of government are most implicated in public forum and religious speech disputes? Do most litigants represent one specific religious faith, or do a diversity of faiths and religious traditions seek access to public forums?

In resolving religious speech disputes, I argue that district courts engage in a dual policymaking role. First, under public forum doctrine courts must determine if the actual, geographical location of the public place in question is open to expressive activity or not. Courts apply a sliding scale of public forum categories in order to determine how the forum has been regulated in the past, and whether and under what conditions the government may control access to the forum in the present. Second, courts must focus specifically on the issue of religious speech in public places. Religious speech is protected under the Free Speech Clauseor as the Supreme Court tells us, religious speech should be as protected under the First Amendment as other types of private expressionbut do district courts always place religious speech in a preferred position, as a type of speech that should almost always garner First Amendment protection?