As Tom Berg has effectively pointed out, the opinion in Davey is
schizophrenic. It relies heavily on the state's interest in not funding
the training of clergy; at one point, it says that is "the only
interest" at issue. That suggests that the case is confined to the
clergy and all other religious uses of government grants are outside its
scope. But it also relies on the claim that there is no burden because
the government is free to choose what it is willing to subsidize. That
argument has almost infinite application, and as Eugene keeps repeating,
nothing can be logically distinguished from it.
Which argument is the holding? Well, in the first year of law
school, the narrow clergy-only rationale is the holding. Those were the
facts, and everything else is dicta. In the real world, there were
seven votes for both halves of the opinion, and three of them would have
to support any distinction to change the result. Four of the seven
think it is broadly unconstitutional to let private citizens use
government funds for religious purposes; they are not likely to join the
first opinion distinguishing Davey. If that is right, then any
distinction has to capture all three of Kennedy, O'Connor, and Rehnquist
(or their replacements). I would be surprised if all three of them say
the opinion is only about the clergy. Rehnquist of course has been
pushing his idea that government can choose what it is willing to
subsidize, and protect that choice with prophylactic rules, for more
than two decades.
The distinction when it finally comes may not be very logical. But if
states push the envelope in the ways suggested by Eugene's
hypotheticals, eventually the Court will shrink from what seem to be
extreme results, and it will draw an illogical distinction if it can't
think of a logical one.
Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX 78705
512-232-1341 (phone)
512-471-6988 (fax)
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel
O.
Sent: Tuesday, May 03, 2005 11:56 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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