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A Right To Theatricality?

by Mytheos Holt, published

As California courts resume sessions for the new year, they'll face another round of tough cases on the question of religion.

According to the Los Angeles Times:

California jurists next year will rule on the constitutionality of crosses on public land, teachers' speech rights and students' Bible clubs.


Ordinarily, one would hope for justice, but given the dismal recent record of California's courts, the best one can hope for is probably damage control. Still, these three cases may provide a tantalizing realm of debate and a good source of political advantage for one or the other of California's parties, so it's only natural that a little discussion should be devoted to each of them.

According to the Times, there are five cases to be decided by the Court, and they do deal with, among other things, the issues of teachers, Bible clubs and crosses on public land. But things get much more interesting and constitutionally gray than that.

The first case implicates not just free speech rights, but also questions of property rights. That is the case of Borden v. City of Modesto, whose facts follow: Kevin Borden, a preacher of some unidentified religion, was preaching in front of a movie theatre in what he thought was a public plaza when he alleges that the theatre security guards singled him out for harassment and forced him to leave the area. Borden is suing for religious discrimination, claiming that the plaza was public and that the theatre had no right to throw him out. The theatre, by contrast, is alleging that because they had rented the plaza, they therefore enjoyed temporary private property rights over it which allow them to discriminate as they wish.

As constitutional questions go, this is one of the more unpleasant ones because it directly implicates two rights which are supposedly vested with equal protection by the Constitution itself. Those two rights are the right to freedom of religion promised by the First amendment, and the right to property promised by the Fifth amendment, respectively. More distressingly, both of these rights are intimately tied with some idea of "due process of law." This phrase is so ambiguous it's given countless judges excuses to reach activist conclusions and besides, it also means that neither of the two rights can be considered more absolute than the other, given that they both have been filtered into state jurisdiction through the "due process" clause of the Fourteenth amendment.

it's very easy to predict how the California courts will decide this case. Because property has been almost utterly destroyed as a "right" by previous Supreme Court precedent, and because the right to freedom of religion (often read erroneously as "freedom from religion" due to the fabricated "wall of separation" doctrine) has a history of trumping almost everything else. As such, the Court is likely to rule for Borden.

But should it? This is a more difficult question. It is certainly true that if the plaza were public, then Borden's removal would be unconstitutional. But it is not clear that that is what happened. The theater's security guards may have been privately hired, in which case there is nothing on earth which says people cannot hire other people to make others go away. Of course, Borden could allege that this "get off my lawn" tactic was illegitimate, as the theater lacked jurisdiction over the plaza. This is where the issue of renting comes in. If the court rules for Borden, it may land a sort of victory for religious liberty, but there are other potential threats. For instance, the idea that the State can restrict its renters' freedom of assembly is surely problematic for more direct renters like, say, politicians, who may rent state property to hold rallies, or to meet with different groups. A decision against the theater would effectively rule that if anyone felt left out from such an event, the state could force the politician (or any other entity) in question to allow those people to join them. This would be especially problematic in a situation like, say, an NAACP rally where a group of Klansmen seeks to be included. The danger of someone gaming the system in this situation seems far more unpleasant than the prospect of private businesses/individuals being able to exclude others from rented land.

As such, as the Constitution is silent on the issue and it is too late for the court to refuse to take the case, the Court should adopt the policy of least import and rule for the theater, which would thus preserve a sort of tacit assumption about the rights of tenants, even when those tenants rent from the State. As for Border, he can take to preaching somewhere genuinely public.

Besides, it's very difficult to earn converts when all your potential audience wants to do is get in and buy popcorn for a more amusing performance than you can give.

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