Needless to say, the precedential effect of Locke v. Davey is unclear--that's what makes the hypothetical interesting--but I believe that the holding can reasonably and properly be confined in the manner I have suggested. The Court emphasized that the burden on Davey was minimal, and it also emphasized that the state had distinctive antiestablishment concerns that were linked to historical disputes about state-funded clergy.
Dan Conkle -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, May 03, 2005 11:22 AM To: Law & Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up I wonder: Would it indeed, given Locke, be unconstitutional for the state to bar all studies which in effect are focused on devotional theology, setting aside the major? (Imagine a cap on the number of such classes you could take.) It would surprise me if "major" became a constitutionally significant category. As to the state's antiestablishment being weaker, why? In both instances, the state is claiming an interest in keeping tax money from flowing, even as a result of private choice, to religious education (or, in Alan's modification, in which the state barred the religious donation or tithing of aid money, to churches). Why can't the state assert that its interest is identical, and identically strong, in both contexts? Eugene Dan Conkle writes: > As I read the opinion, Locke v. Davey applied a sort of > balancing test. As Mark notes, the Court found a strong and > historically recognized antiestablishment interest on the > part of the state. At the same time, the Court also found > the free exercise burden, if any, to be slight. The Court > concluded that the state's disfavor of religion was minimal > and did not suggest hostility. The Court might well find a > greater burden--and perhaps increased evidence of > hostility--if a state were to bar welfare recipients from > using their benefits for religious instruction. Note that > Davey could have kept his scholarship and used it to study > devotional theology, as long as he did not declare that field > as his major. > > If I'm right, the balance tips differently in Eugene's > hypothetical for each of two reasons: the state's > antiestablishment interest is weaker and the burden on free > exercise is greater. _______________________________________________ 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.