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CHAPTER 3 Standing in the Temple and Teaching the People: Litigants, Courts, and the Public Square PUBLIC FORUMS ATTRACT SPEAKERS WHO wish to publicly communicate a specific message. Whether that message is political, social, artistic, or religious, there is some underlying reason why the speaker thinks it belongs in a public space. Understanding district court policymaking in religious speech and public forum cases depends , then, to a large extent on the messages and motivations of the speakers seeking access to public spaces for their messages. Litigants invoke the power of courts to protect their rights, and courts respond accordingly. Thus, to fully comprehend the role of district courts in adjudicating religious speech and public forums disputes, it is necessary to discuss why and under what circumstances speakers seek access to the public square for their messages. For example, Krishnas of the International Society for Krishna Consciousness (ISKCON) base their presence in the public square around sankirtan, a mandatory religious ritual in which devotees greet members of the public and solicit them for donations to support the Hare Krishna movement.1 Whereas the Krishnas engage in a type of expression that depends on face-to-face encounters 70 with other people, other speakers choose different means to get their religious views across to the public. The Jewish group Chabad-Lubavitch, for instance, puts menorahs in public places to remind Jews of their obligations to Torah law. Likewise, a myriad of Christian speakers, from individuals motivated by basic evangelical tendencies to more organized groups such as the Promise Keepers, similarly seek access to the public square to communicate evangelical, proselytical messages aimed at motivating existing evangelical Christians while also trying to convert those of other faiths. Indeed, Christian litigants sometimes seek access to the public square in order to circumvent more restrictive court decisions under the Establishment Clause that tend to raise barriers to religious expression in the form of public prayer, for instance. “Rather than expending their energy and resources defending themselves against charges of establishment,” as Philip Kenneson puts it, “they have gone on the offensive, arguing for their right to free religious expression.”2 Litigation trends and pressures affect federal district court policymaking in public forum cases, and demonstrate how the law is used to gain and protect access to the public square. Two fundamental questions are in order. First, who litigates? Second, why litigate ? The first question centers on the status of the plaintiffs: are they individuals seeking to protect rights of access to public spaces for their specific religious message, or are they more often interest groups seeking to establish broader public policy through the federal court system? The type of defendant is important too. Since almost all constitutional complaints are directed at government institutions, certain questions are central to understanding how governments defend their management of public forums. Thus, which levels and types of governments are often swept up in public square access disputes? Importantly, studying the symmetries of litigation yields two broad trends. First, over one-half of the litigants seeking access to Standing in the Temple and Teaching the People 71 a public forum are individuals who simply wish to engage in some kind of religious speech or expression. Other litigants are interest groups, other religious organizations, and churches and congregations . Thus, individual “rights seekers” file most of the claims, and very few individual cases are linked with interest groups that might provide counsel or other types of assistance. The second broad trend focuses on the fact that most of the forums at issue are owned and managed by local government agencies such as schools boards, port authorities, or even public libraries. The predominance of local government forums fits into Richard SpinnerHalev ’s discussion of religious speech in the public square, presented in chapter 1, that views most public spaces as “mini public forums” that are not national stages for speech and expression at all. That almost 75 percent of defendants in religious speech cases are local governments tends to prove his argument, and it also means that local political processes and regulatory agencies are the most involved and affected by how religious speech and public forum law develops. Aside from who wants into the forum, and who denies access, the motivations of the litigants also shed light on the kinds of issues that district courts must address. Focusing on the specific messages that litigants seek to place into the public square and their primary type of expression again highlights the tensions and pressures...

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