The Bible in the Park: Federal District Courts, Religious Speech, and the Public Forum

Preface

Preface The 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 ix 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 outcome—the court’s decision—is 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 Amendment’s 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? Preface x 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...