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:
Ordinarily, one would hope for justice, but given the dismalrecent record of California's courts, the best one can hope for isprobably damage control. Still, these three cases may provide atantalizing realm of debate and a good source of political advantagefor one or the other of California's parties, so it's only natural thata little discussion should be devoted to each of them.
According to the Times, there are five cases to be decidedby the Court, and they do deal with, among other things, the issues ofteachers, Bible clubs and crosses on public land. But things getmuch more interesting and constitutionally gray than that.
The firstcase implicates not just free speechrights, but also questions of property rights. That is the case ofBorden v. City of Modesto, whose facts follow: Kevin Borden, a preacherof some unidentified religion, was preaching in front of a movietheatre in what he thought was a public plaza when he alleges that thetheatre security guards singled him out for harassment and forced himto leave the area. Borden is suing for religious discrimination,claiming that the plaza was public and that the theatre had no right tothrow him out. The theatre, by contrast, is alleging that because theyhad rented the plaza, they therefore enjoyed temporary private propertyrights over it which allow them to discriminate as they wish.
As constitutional questions go, this is one of the moreunpleasant ones because it directly implicates two rights which aresupposedly 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 intimatelytied with some idea of "due process of law." This phrase is soambiguous it's given countless judges excuses to reach activistconclusions and besides, it also means that neither of the two rightscan be considered more absolute than the other, given that they bothhave been filtered into state jurisdiction through the "due process"clause of the Fourteenth amendment.
it's very easy to predict how the California courts willdecide this case. Because property has been almost utterly destroyed asa "right" by previous Supreme Court precedent, and because the right tofreedom 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 iscertainly true that if the plaza were public, then Borden's removal would be unconstitutional. But it is not clear that thatis what happened. The theater's security guards may have been privatelyhired, in which case there is nothing on earth which says peoplecannot hire other people to make others go away. Of course, Bordencould allege that this "get off my lawn" tactic was illegitimate, asthe theater lacked jurisdiction over the plaza. This is where the issueof renting comes in. If the court rules for Borden, it may land asort of victory for religious liberty, but there are other potentialthreats. For instance, the idea that the State can restrict itsrenters' freedom of assembly is surely problematic for more directrenters like, say, politicians, who may rent state property to holdrallies, or to meet with different groups. A decision against thetheater would effectively rule that if anyone felt left out from suchan event, the state could force the politician (or any other entity) inquestion to allow those people to join them. This would be especiallyproblematic in a situation like, say, an NAACP rally where a group ofKlansmen seeks to be included. The danger of someone gaming the systemin this situation seems far more unpleasant than the prospect ofprivate businesses/individuals being able to exclude others from rentedland.
As such, as the Constitution is silent on the issue and it is toolate for the court to refuse to take the case, the Court should adoptthe policy of least import and rule for the theater, which would thuspreserve a sort of tacit assumption about the rights of tenants, evenwhen those tenants rent from the State. As for Border, he can take topreaching somewhere genuinely public.
Besides, it's very difficult toearn converts when all your potential audience wants to do is get inand buy popcorn for a more amusing performance than you can give.