Jay Wexler: Cape Cod Hullabaloo: A Prayer Parking Space?
August 20, 2009
Today's post is from law professor and humorist Jay Wexler, author of Holy Hullabaloos: A Road Trip to the Battlegrounds of the Church/State Wars. He studied religion at the University of Chicago Divinity School and law at Stanford, and worked as a clerk to U.S. Supreme Court justice Ruth Bader Ginsburg. Wexler teaches at the Boston University School of Law, and he blogs at holyhullabaloos.typepad.com, where this post originally appeared.
As a couple of local Boston area papers have reported, the board of selectmen in the town of Falmouth, Massachusetts, recently voted to allow one parking space at the Old Silver Beach to be used from 11 a.m. to 3 p.m. each day by a group of local churches. The churches can set up shop in the parking space and talk to people who come and talk to them first, but the churches are not allowed to proselytize to people who just want to come and get some sun and surf.
Understandably, this decision has raised some concern that the town has violated the First Amendment's Establishment Clause, which prohibits the government from making any law "respecting an establishment of religion." This is the part of the Constitution that typically people mean when they talk about "separation of church and state." Well, the use of the prayer parking space, without more, does not itself violate the First Amendment. It's weird--maybe even, as we like to say in Boston, wicked weird--but not unconsitutional. What would be unconstitutional, however, would be if some other religious group--say a Jewish group or a Buddhist group or a Satanist group--asked the town if it could also set up shop in the parking lot, and the town said no.
That's because, by opening up the parking space to private individuals to engage in speech (religious speech, in this case, but still speech), the town has created what the Supreme Court has termed a "limited public forum" for speech, which is what happens when the government opens up a piece of government property not usually used for speech by the public (not, in other words, a public park or downtown street corner) and lets people use the property for speech. Although the Supreme Court's so-called "public forum doctrine" is a little fuzzy (well, a lot fuzzy, actually), the basic idea is that if the government opens up one of these limited public forums, it can maybe limit access to the forum on the basis of what subject matter someone wants to speak about, but not on the basis of the viewpoint of the speaker.
What this means is that maybe the town could say no to some group that wanted to speak about health care or sports or sex or potatoes or something--because those topics are on a different subject matter than religion--but it cannot say no to any group that wants to speak on or about religion from a different viewpoint than the groups who have already been allowed to speak. So, if, for example, I wanted to use the space to talk about why I am an atheist and to espouse atheist philosophy, and I asked the Falmouth selectmen if I could have access to the space, and they said no, I would have a strong case that my first amendment rights had been violated. Indeed, if I had more time and didn't have to start working on my next book and the traffic to and from the Cape weren't so incredibly awful, I might actually ask Falmouth for access to the space just to see what would happen.
To be sure, the town wouldn't necessarily have to give me access to the same exact parking space at the exact same time as the churches. The town could open up another parking space for me instead. One for the Christians, one for the Jews, one for the Satanists, and one for the atheists. Boy, that would be a fun trip to the beach! Or maybe, possibly, the town could slice up access to the space temporally, so that each church gets to use the space for an hour each day. But the quality of the access would still have to be equal. No giving the Christians the space from noon to 1 pm and the Satanists the space from 3 to 4 in the morning.