I appreciate Mark's suggestion, but I don't quite understand the
"high voltage historical issue" test.
If the "high voltage historical issue" test allows the
government to discriminatorily exclude religious uses only when those
particular kinds of programs had led to huge debates in the past, then I
think it wouldn't justify the exclusion in Locke. To my knowledge,
there had been few debates about nondiscriminatory private-choice grants
to college students; I don't know if there were any such grant programs
before the GI Bill, but in any event I don't know of huge debates about
them throughout American history.
Of course, if the "high voltage historical issue" test lets the
government define the scope of the historical controversy at a higher
level of abstraction -- for instance, to include debates about
discriminatory programs, or direct aid programs -- then it may well
justify the exclusion in Locke. But why wouldn't it justify the
exclusion in my hypo? The high voltage debates about discriminatory
grant systems and direct government subsidies involved the funding of
religious services (cf. the Virginia Assessment controversy) as well as
of K-12 religious education. So if you look at things at that level of
generality -- if you set aside the distinction between private choice
programs and discriminatory aid programs such as the Virginia plan --
the "high voltage historical issue" encompasses contributions to
churches, and presumably spending for Bible study.
Now Mark is right that the Founders would probably have been
outraged by the idea "that a recipient of government money (such as the
salary of a federal employee or a payment to a federal contractor) could
not use some of that money for religious purposes." But once we
generalize from *that*, I'm not sure we know which direction to
generalize to. I don't believe the Founders were that familiar with
programs of general monetary payments to poor people -- would they have
been outraged by the idea that such payments couldn't be used for
religious purposes? Maybe. But maybe they would have been outraged by
the idea that a general private-choice nondiscriminatory education
grant, which was in practice nearly always used for secular education --
another program with which they weren't that familiar -- could be by law
limited to exclude religious education. So it seems to me that neither
the "high voltage historical issue" standard or "the Founders would have
been outraged" standard is that helpful once we go beyond very close
analogies. And since the program in Locke is far from a close analogy
to the Virginia assessment program, or to the proposed school funding
programs that aroused opposition in the 1800s, I'm not sure what voltage
and outrage can really tell us here.
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Scarberry, Mark
> Sent: Monday, May 02, 2005 10:09 PM
> To: 'Law & Religion issues for Law Academics '
> Subject: RE: Locke v. Davey follow-up
>
>
> Here are some preliminary thoughts on Eugene's question.
>
> Though I think Locke v. Davey was incorrectly decided, it is
> at least plausible to say that a government education grant
> that can be used for clergy training involves government in
> supporting the training of clergy. Because direct government
> support for religious training -- and especially for the
> training of clergy -- is a high voltage historical issue that
> has been controversial since the Founding, the Court allowed
> Washington to steer clear of it in a way that discriminates
> against religion.
>
> But the notion that a government grant program that is not
> specifically for education implicates Establishment concerns
> when the recipient chooses to use the money for some
> religious purpose does not have historical resonance. Indeed,
> since it is likely that many people at the time of the
> Founding tithed (perhaps the historians can tell us whether
> that is true), the idea would have been outrageous that a
> recipient of government money (such as the salary of a
> federal employee or a payment to a federal contractor) could
> not use some of that money for religious purposes. It would
> have meant that many religious persons could not have been
> government employees or contractors. Cf. the prohibition on
> religious tests for federal office.
>
> Since we don't have a high voltage historical Establishment
> controversy, the usual rule should apply, that discrimination
> against religious uses of such grants violates the Free
> Exercise Clause. That is not to say that a grant of money for
> purchase specifically of food could not contain a condition
> requiring that it be used only for food; consider the food
> stamp program. But if the recipient is entitled to use the
> money for purposes chosen by the recipient, there should be
> no discrimination against religious purposes. And a
> fungibility approach -- saying, for example, that no one who
> gets food stamps can give any money to a church, because
> money is fungible and it might as well be the government
> money that is being used -- would similarly discriminate
> against religion. Can you imagine such a program
> comprehensively governing the spending of a recipient? No
> Playboy magazines to be purchased with other money? No
> concerts? No newspapers? Such regulation would violate other
> parts of the First Amendment, wouldn't it?
>
> Mark Scarberry
> Pepperdine
>
>
> -----Original Message-----
> From: Volokh, Eugene
> To: Law & Religion issues for Law Academics
> Sent: 5/2/2005 9:33 PM
> Subject: RE: Locke v. Davey follow-up
>
> I may be mistaken, but I've never heard of AFDC
> statutes limiting the use of the money to food, shelter, and
> the like; as best I can tell, recipients are free to spend
> the money on anything, including education. But since I
> didn't want to assume anything about the federal AFDC scheme,
> I asked about a state general relief or disability plan.
>
> So let me ask again, though with this point clarified:
> Say that the Washington Legislature is bothered by reports
> that welfare recipients under some state law welfare program
> (general relief, disability, etc.) are spending some of their
> payments on Bible Study classes. It therefore provides that
> welfare benefits -- which are otherwise usable by the
> recipient for any other purpose -- may not be used to pay for
> any theological education, whether a degree program (such as
> the one Davey wanted to use) or just an informal study program.
>
> Is this prohibition constitutional under Locke? Is it
> unconstitutional, because Locke is somehow different? I'd
> love to hear what people think. Thanks,
>
> Eugene
>
> > -----Original Message-----
> > From: [EMAIL PROTECTED]
> > [mailto:[EMAIL PROTECTED] On Behalf Of Paul
> > Finkelman
> > Sent: Monday, May 02, 2005 8:34 PM
> > To: Law & Religion issues for Law Academics
> > Subject: Re: Locke v. Davey follow-up
> >
> >
> > The question might be how statutes are written. If the
> > statutes limit
> > use of money for certain things, then use of the money might be
> > prohibited for *all* other things, not just religious
> ecucation; that
> > would then be a law of general applicability.
> >
> > Jean Dudley wrote:
> >
> > > Paul Finkelman wrote:
> > >
> > >> are welfare payments tied to expected budget expenses -- food,
> > >> housing, clothing, transportatoin, medical care, etc?
> > Most welfare
> > >> is AFDC, and is earmarked for helping children. If mother
> > uses money
> > >> for food and housing to pay the church, is that welfare fraud?
> > >>
> > >> Paul Finkelman
> > >
> > >
> > > I'd argue that although (some?) welfare funds are
> ostensibly for the
> > > child's welfare, it's up to the legal guardian/parent/s to
> > decide what
> > > that welfare entails. If they opt to pay membership dues
> > to a church,
> > > temple or coven, that is their decision. If the child is
> > hungry, sick
> > > and in worn-out clothes as a result, that's a matter for
> > child welfare
> > > services.
> > > Jean Dudley
> > >
> > > _______________________________________________
> > > To post, send message to Religionlaw@lists.ucla.edu
> > > To subscribe, unsubscribe, change options, or get password, see
> > > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> > >
> > > Please note that messages sent to this large list cannot be
> > viewed as
> > > private. Anyone can subscribe to the list and read
> > messages that are
> > > posted; people can read the Web archives; and list members can
> > > (rightly or wrongly) forward the messages to others.
> >
> >
> > --
> > Paul Finkelman
> > Chapman Distinguished Professor of Law
> > University of Tulsa College of Law
> > 3120 East 4th Place
> > Tulsa, OK 74104-3189
> >
> > 918-631-3706 (office)
> > 918-631-2194 (fax)
> >
> > [EMAIL PROTECTED]
> >
> >
> >
> > _______________________________________________
> > To post, send message to Religionlaw@lists.ucla.edu
> > To subscribe, unsubscribe, change options, or get password,
> > see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> >
> > Please note that messages sent to this large list cannot be
> > viewed as private. Anyone can subscribe to the list and read
> > messages that are posted; people can read the Web archives;
> > and list members can (rightly or wrongly) forward the
> > messages to others.
> >
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password,
> see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be
> viewed as private. Anyone can subscribe to the list and read
> messages that are posted; people can read the Web archives;
> and list members can (rightly or wrongly) forward the
> messages to others. _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password,
> see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
>
> Please note that messages sent to this large list cannot be
> viewed as private. Anyone can subscribe to the list and read
> messages that are posted; people can read the Web archives;
> and list members can (rightly or wrongly) forward the
> messages to others.
>
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
