But why limit it to situations involving "historical disputes
about state-funded clergy" *education*? There have also been historical
disputes about state funding of clergy practice, not just clergy
education (see the Assessment controversy).
If private-choice education grant programs such as the one in
Locke may exclude use for religious study because otherwise tax money
will flow for clergy education, why can't programs of aid to the poor or
the disabled exclude religion because otherwise tax money will flow to
the clergy (via donations or Bible Study tuition payments)? Why isn't
the latter as close as the former to the historical disputes?
Eugene
> -----Original Message-----
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> Conkle, Daniel O.
> Sent: Tuesday, May 03, 2005 9:56 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Locke v. Davey follow-up
>
>
> 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.
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