Spring is rumored to be in the air, but in the legal academy and in general it isn’t always the happiest and most optimistic of times. T. S. Eliot offered the following lines in the The Waste Land:
April is the cruelest month, breeding
Lilacs out of the dead land, mixing
Memory and desire, stirring
Dull roots with spring rain.
Winter kept us warm, covering
Earth in forgetful snow, feeding
A little life with dried tubers.
Rick Esenberg has two interesting recent additions to the SSRN database of scholarly papers, both of which develop his theory of “a more modest Establishment Clause.” Here is the abstract of the first paper, entitled “Of Speeches and Sermons: Worship in Limited Purpose Public Forums”:
Recent decisions of the United States Supreme Court have held that governments who create limited purpose public forums may not exclude even “quintessentially religious” speech that is otherwise within the purpose of the forum. Nevertheless, governments frequently attempt to exclude religious speech that might be characterized as “worship” from such forums and the Ninth Circuit Court of Appeals, in conflict with the Second and (arguably) Seventh Circuits, has upheld such exclusion.
This article addresses whether worship can be regarded as a separate category of speech that may be constitutionally excluded from limited purpose public forums. To assess the idea that worship is “different,” it briefly assesses mainstream Christian theology concerning worship and concludes that worship is likely to communicate ideas about life in the world that are within the boundaries of most broadly defined public forums. Exclusion of such speech would be inconsistent with the Court’s insistence upon neutrality between religion and irreligion and is unnecessary to avoid the risk or appearance of establishing religion.
The paper is forthcoming in the Mississippi Law Journal.
There is not much to report from the Seventh Circuit front this week. The court issued only one new opinion in a criminal case, and it was not one that broke any new legal ground. In United States v. Brewer (No. 08-3257), the defendant was convicted of unlawfully possessing a firearm. A police officer responding to a call about gunfire in an apartment complex saw Brewer driving away from the complex. Brewer’s car was stopped on that basis, resulting in discovery of the incriminating weapon. On appeal, Brewer argued that the gun should have been suppressed because the underlying stop was unconstitutional. The court (per Judge Posner) agreed that it was at least a close call (“the case is on the line between reasonable suspicion and pure hunch”), but ultimately determined that the “unusual circumstances” of the case met the test for reasonability.