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If I understand Tom's post correctly, he
agrees with the majority in the Florida case that there is no
Free Exercise violation here because Florida (i.e., the state courts,
construing the legislature's intent as to "severability") is
not treating religious schools unfavorably vis-a-vis
other private schools. And that was the principal question that I was
asking -- i.e., could the university in Widmar have opted to close all
classrooms to student groups once it learned that religious groups would have to
be included? Tom says "yes." But the dissent in the Florida
case says "no"! -- that if the closure was motivated by the objective of
excluding religious groups, then the facially neutral closure itself violates
the Free Exercise Clause. I think that's probably wrong, and it
appears Tom agrees.
If possible, I'd like to hear from any listmembers
who disagree with this conclusion, before the discussion veers away to the very
interesting subsidiary question that Tom addresses.
The next question -- the one Tom's e-mail
principally addresses -- is this: If (i) the Free Exercise Clause would
prohibit discrimination against religious schools (which is contrary to the
Florida's court's holding, but assume arguendo that the dissent is correct to
distinguish Davey), and (ii) the
Florida Constitution prohibits use of vouchers in religious schools,
could the Florida Legislature ignore the Florida Constitution and
enact a plan that permits vouchers to be used at religious and nonreligious
schools alike? Tom is absolutely correct that nothing in the
federal Constitution would prohibit the legislature from doing
so. In Tom's words, the state has the "choice" between all or
nothing. The problem, as I see it, is that the state has chosen
-- the State Constitution appears to compel the answer of
"nothing."
Tom suggests that the effect of the federal
constitutional command is not only to require nondiscrimination, but also to, in
effect, erase, or invalidate, the "flawed" state constitutional provision, or,
in any event, to make it "not binding" on lower-level state
decisionmakers. That's a very interesting jurisprudential question, I
think. Of course, we all know that when a court declares a statute (or
state constitutional provision) "invalid," it does not mean that the provision
magically disappears, or is thereby repealed. What it means is that the
courts will enjoin any application of the statute that violates the federal
constitutional norm.
If, therefore, the state constitution required that
religious schools be "singled out" for disfavored treatment, as Tom suggests,
then of course the lower-level state actors could never apply that provision in
a manner consistent with a federal rule that such discrimination is
unconstitutional -- because any such application would be enjoined. The
difficulty with Tom's analysis, as I see it, is that the state constitutional
norm here does not require religious schools to be singled out -- it
merely requires that they not receive aid. The federal Constitution has
not "invalidated" the refusal of Florida to give aid to religious
schools -- Tom concedes that Florida need not do so as long as secular and
religious schools alike. It has merely (that is to say, hypothetically, if
the Florida court is wrong) prohibited discrimination. Therefore there is
no conflict between the two constitutions, and the lower-level state actors must
honor both.
I genuinely do not know whether this is correct --
but I think that it is a question of state, not federal, law.
This is essentially the conclusion that Van Alstyne reached in an analogous
context in his "Thirty Pieces of Silver" article -- that if Congress offers the
state funds only on a condition that the state do something that is
independently barred by the state's own constitution, the state has no choice
but to decline the federal funds. On the other hand,
Lead/Deadwood suggests otherwise, and would probably be support for
Tom's theory.
----- Original Message -----
From: "Berg, Thomas C." <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<[EMAIL PROTECTED]>
Sent: Saturday, November 13, 2004 11:03
AM
Subject: RE: Florida Voucher
Decision > before. As Marty describes the reasoning, it is inconsistent with the > premises and result of Widmar, and indeed of a vast number of other > public-forum cases. In Widmar, the Missouri state constitutional principle > singling out religious groups for exclusion (in the name of strict > separation) was overridden by the federal constitutional right of equal > access. The result was that the state university must *either* close its > classrooms to student groups on a religion-neutral basis *or* allow the > religious group to meet. Had the Widmar Court given any shrift to the kind > of argument in Florida that Marty describes, the only permissible remedy > would have been to close the classrooms. Widmar clearly did not do that: > it gave the state the choice of how to comply with the federal equal-access > requirement. I realize that Widmar does not explicitly reject the > Florida-type reasoning; but it seems to me that it does so implicitly. > > The Florida court's argument wouldn't just apply in Widmar, it seems to me; > it would apply, and change the result, in *every* equal-access case in which > the direct decisionmaker who denied equal access (such as a local school > principal) was acting under a rule promulgated by higher authority -- say, a > school-district rule, or a state statutory or administrative rule. The > latter, as I recall, was at issue in every one of the equal-access cases > from New York, including Lamb's Chapel, Good News Club, and Bronx Household. > In those cases, too, under the Florida court's logic, the direct > decisionmaker would have *no choice* but to close its forum -- in order to > comply with both the federal Constitution and the local/state rule governing > the direct decisionmaker. The fact that the local/state rule is not a state > constitutional provision makes no difference to the theory. Nor does it > make any difference that the equal access is to generally available funding > rather than generally available faciltities. In any of these cases, under > the Florida court's theory, the court *must* order the closing of the forum > so that both provisions can be complied with. > > Nor is the Florida theory limited to cases involving exclusions of religion, > it seems to me. It would apply to the exclusion of any viewpoint -- > political, gay rights, etc. -- whenever that exclusion was mandated by a > state or local rule above the level of the actual decisionmaker in the case. > In any such case, the court could, and therefore *must*, satisfy both the > state/local rule and the federal free speech rule of viewpoint neutrality by > ordering the decisionmaker to close its forum more broadly. > > Needless to say, accepting this argument would dramatically alter the > equal-access principle in a very large number of cases and would remove what > I and others have taken to be a fundamental premise of the principle: that > the decisionmaker has a choice of closing the forum *or* allowing access to > the excluded group. I don't have a set of string cites on hand that the > result is such a choice, but I'm sure that such statements exist. > > I think that the implicit premise of Widmar and other equal-access decisions > is that if a state provision requires the singling out of religious groups > for exclusion beyond the extent demanded by the Establishment Clause, then > that provision cannot be given effect so as to limit the decisionmaker's > discretion. Such a provision is itself constitutionally flawed because it > is inherently discriminatory in singling out religious activity for > exclusion. Such an inherently flawed provision cannot bind the > decisionmaker -- even if the court also throws in some other restrictions in > order to make its ultimate order nondiscriminatory. In Widmar, the Missouri > constitutional provision for strict separation of church and state singled > out religious activity beyond the degree demanded by the Establishment > Clause. It therefore was discriminatory and could not be given effect to > force the state university into denying access to classrooms across the > board. The state or local decisionmaker *may* follow such a neutral course > of forum closure, but it cannot be forced to do so by a state provision that > is itself unconstitutional. > > Put differently, the federal constitutional flaw is in the discriminatory > nature of the state provision itself, not just in that it might actually > lead to a discriminatory treatment of the religious group. And the legal > challenge in equal-access cases -- including in the voucher context -- > includes a challenge to the state provision itself, not just to the > discriminatory decision by the direct decisionmaker. > > Therefore, I would argue, a court in a voucher case has to decide whether > the state no-aid provision is itself flawed -- under a Lukumi or "Blaine > Amendment animus" type challenge. It can't avoid such a challenge by > saying "even if the state provision is fundamentally flawed, we can still > apply it and also give equal treatment by requiring the closure of the > entire voucher program." Perhaps Davey will ultimately be read to reject > the challenge, but courts can't avoid deciding it. > > Tom Berg > University of St. Thomas (Minnesota) > |
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