When Is Religious Speech Not “Free Speech”?

Advocates of religious speech have strategically used the First Amendment\'s Free Speech Clause to undermine the limitations on speech in the First Amendment\'s Establishment Clause. In the face of these constitutional challenges, courts confronting the issue of relig-ious free speech rights throughout the country have come to divergent conclusions. Because limits on religious speech are necessary to pro-mote religious liberty, Professor Gey argues that religious speech should be treated differently than other types of speech under the First Amendment. Specifically, he suggests that courts confronting Estab-lishment Clause issues should adopt an \"opt-out\" rule, whereby pri-vate religious expression at a government forum violates the Estab-lishment Clause if the court finds that an individual must opt out of a government benefit to avoid participating in the religious expression.Professor Gey points out that the opt-out rule would not bar all private religious expression from government forums; it would only bar private religious speech that dominates the forum such that nonadherents must forgo access to the forum or be forced to partici-pate in the religious exercise. This rule, he argues, would be consistent with the limitations that the Supreme Court has set forth in Windmar v. Vincent and Board of Education v. Mergens. Thus, local officials may permit private religious expression when it is offered in a manner that allows parties who are predisposed to participate to opt into the religious exercise. Yet it also imposes a duty on public officials to pre-vent private individuals from using a government forum to impose religious pressure indirectly by creating a gauntlet for religious dis-senters.* Fonvielle & Hinkle Professor of Litigation, Florida State University. B.A., 1978, Eckerd College; J.D., 1982, Columbia University.

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