Issue 5
Economic Liberty and the Second-Order Rational Basis Test
This Note proposes that certain constitutional economic liberty claims should be analyzed under a more stringent standard of scrutiny than they currently receive. In the industrializing period of the early twentieth century, the Supreme Court employed a rigorous mode of judicial review to invalidate a tapestry of regulations that arguably impinged on economic freedom. The case of Lochner v. New York, in which the Court voided a state law regulating maximum work hours, epitomizes this methodology. The New Deal, however, prompted judicial acquiescence to a revolutionary vision of legislative authority in the economic realm. The doctrinal sea change occurred in United States v. Carolene Products Co., where the Court, in response to the perceived judicial activism of the Lochner era, announced in its famous Footnote Four that it would henceforth abstain from micromanaging social and economic regulation. Footnote Four also reflected the Court’s intention to devote its future efforts primarily to safeguarding certain personal rights and defending vulnerable populations against invidious discrimination.
Forum Domination: Religious Speech In Extremely Limited Public Fora
In the United States there are a large number of religious communities that do not have the resources to obtain a meeting place of their own. Frequently, these groups meet in public schools, taking advantage of liberal rental policies that provide inexpensive space to community groups. Not surprisingly, this kind religious use of public space has generated much First Amendment litigation.
It is now settled law under the Public Forum Doctrine that such religious groups must have access to public facilities on an equal footing with non-religious groups. Nonetheless, the Supreme Court has expressed concern that First Amendment problems could arise if a religious group dominated the available rental space in such a forum.
Although the forum domination problem is one that the Supreme Court has discussed in several opinions, it has never faced the question directly. In spite of the Court’s speculation on the matter, and although the specter of forum domination is often raised, cases of courts actually finding forum domination have been quite rare. More recently, however, the Second Circuit has shown a willingness to find domination in a wider range of scenarios. This note will argue that the Second Circuit has taken an overly broad view of forum domination that does not comport with the Supreme Court’s cases. Properly understood, forum domination occurs only when one group uses a forum’s resources to the exclusion of others who actually seek access to them.
Although forum domination is a problem of narrower scope than the Second Circuit has held, it still is a genuine problem. Forum domination may result in impermissible government aid to, or endorsement of, religion. This note will argue, however, that the most plausible reading of the Supreme Court’s cases is that the forum domination problem presents a limit, not on private speech, but on the government’s administration of public fora. This note will also evaluate several of the policy options available to local governments to avoid the forum domination problem.
Finally, this note will conclude that although courts have discussed the forum domination problem primarily in the context of the use of a forum by religious speakers, it may arise regardless of the religiosity of a forum’s participants. Consequently, enacting policies to ensure the equitable treatment of all speakers is critical in any forum with limited space.