September 01, 2006

Is the Fourth Circuit Acting Inconsistently on Religious Speech?

Marci Hamilton argues that it is:

In April of 2005, the Fourth Circuit held, in Simpson v. Chesterfield County Board of Supervisors, that local government can intentionally and publicly discriminate against minority religious denominations. But this month, the Fourth Circuit held in Child Evangelism Fellowship v. Montgomery County Public Schools, that a public school's refusal to permit Christian evangelistic literature in its take-home flyer program was potentially viewpoint discrimination, and, therefore, unconstitutional ...

Perhaps the Fourth Circuit is comfortable with the political universe within which it has been led by these two decisions, or perhaps doctrinal blinders have made it difficult for the court to see the internal inconsistency of these two decisions. Either way, it's made a serious error: The CEF and Simpson cases are not only contrary to the evolution of the Supreme Court's precedent and thinking over the years, they are also in conflict with each other. When the two decisions are taken together, the one internal consistency is that they both benefit Christians.

For whatever it's worth, the panel that ruled in Child Envagelism Fellowship (Judges, Motz, Michael and Shedd) was not a particularly conservative one by the standards of the Fourth Circuit, and included two Clinton appointees. All three judges on the Simpson panel though are indeed staunch conservatives - Williams, Wilkinson and Niemeyer.

Posted by armand at September 1, 2006 07:37 PM | TrackBack | Posted to Law and the Courts | Religion

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