From: matt@smoke.brl.mil (Matthew Rosenblatt)
Newsgroups: misc.legal
Subject: Re: State Universities & First Amendment
Summary: Free exercise by State and Federal employees.
Keywords: _McCollum v. Board of Education_, 333 U.S. 203 (1948).
Date: 2 Sep 92 20:45:17 GMT
Organization: U.S. Army Ballistic Research Lab, APG MD.

In article <BtwwC9.K0u@world.std.com> srm@world.std.com 
(Stevens R Miller) writes:

>matt@smoke.brl.mil (Matthew Rosenblatt) writes:

>>That's a "free exercise" issue, not an "establishment" issue.
>>[Matt Rosenblatt]

>I dissent.  Establishment of religion occurs when religion is endorsed
>or encouraged, either one religion, or religion generally.  Compulsory
>attendance would be in establishment of religion.  [Stevens R Miller]

Mr. Miller is right -- I missed the obvious.  Compulsory attendance,
which the service academies used to requires, raised both an 
"establishment" issue and a "free exercise" issue.

>Free exercise is the
>balancing force (and hence the popular notion that separation means
>isolation is incorrect) that requires a government employee, volunteer
>or draftee, be at least able, but not required, to practice his or her
>faith.   [Stevens R Miller]

The questions are, how far *must* the government go to insure the
volunteer's ability to practice his religion, and how far *can* it go
without running afoul of the "establishment clause," and why does
the volunteer's status as a "government employee" make that much
difference in a case like that of the Naval Academy, where the facts
show that midshipmen were allowed to leave the reservation to worship
in the city of Annapolis?

Justice Reed, dissenting in _McCollum v. Board of Education_, noted
that the Naval Academy's Catholic and Jewish midshipmen could practice
their religion by worshipping at churches and synagogues outside the
Academy's reservation, while Protestant midshipmen had a government-
provided chapel on the reservation.  One could argue that if off-base
houses of worship were sufficient to provide "free exercise" to Jews
and Catholics, it ought to be sufficient for Protestants, and that
the Academy ought to be free to close its Protestant chapel.  One
could go further and argue that if the "free exercise" clause does
not *require* the Academy to maintain a Protestant chapel for its
midshipmen, then the "establishment" clause *prohibits* it from 
doing so.

Can it be that "free exercise" requires, and the "establishment" 
clause does not prohibit, the provision of an on-campus chapel 
at service academies, whereas the "establishment" clause does 
prohibit the provision by a State university of a room for saying 
Mass?  What if the use of the room were restricted to State
employees such as university administration and faculty?  Don't 
State employees deserve as much "free exercise" at government 
expense as federal government employees do?

The key to "free exercise" seems to be whether the people involved
are free to leave the campus to worship outside, not whether they
are draftees, military volunteers, civilian federal employees,
civilian State employees, or just plain State university students.


					-- Matt Rosenblatt
                                        (matt@amsaa.brl.mil)

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