Eugene: Could you clarify your hypo just a
bit to address Doug's question?: Is your "no religion" restriction imposed
only on the government funds, or is there (as in Davey,
Rust, Sabri, etc.) a broader, "segregation" restriction
on the recipient's use of her own funds, on the theory that money is fungible
and receipt of government money "frees up" dollars for the "disfavored"
expenditure? If the latter, what's the restriction? In
Davey, it was that the student had to work toward a theology major in a
separate undergrad program; in Rust, that abortion could be counseled
only by a separate affiliate, in a separate clinic, strictly segregated in
personnel, placement and bookkeeping. In the absence of an
organizational recipient or a "program," as such, wouldn't your hypo
have to concede that the recipient can use her non-government-provided
funds for religious purposes? Which wouldn't make the problem disappear -- especially not for someone dependent on the
welfare benefits. But it would change the hypo somewhat -- e.g., to make
it more akin to Maher and Harris v. McRae.
----- Original Message -----
From: "Volokh, Eugene" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<religionlaw@lists.ucla.edu>
Sent: Tuesday, May 03, 2005 3:51 PM
Subject: RE: Locke v. Davey
follow-up
Smith, Bob Jones, U.S. v. Lee, and the like -- this *is* discrimination
against religion (both the hypo and the program in Locke). One might
argue that it's justifiable discrimination, but it's discrimination.
As to the government's reasons for the condition, both in Locke
and in my hypo, the government is indeed saying "because this is
religious and we wish to respect what we see as taxpayers' right not to
fund the sacred." Is that good enough?
Toni Massaro writes:
> I think that every failure to accommodate does not constitute
> "discrimination against" -- not that there is no such thing
> as a failure to accommodate that rises to the level of
> persecution, hostility or selective burdening of religion
> that crosses constitutional lines.
>
> I think the Court's emerging account of "neutrality" does not
> capture this nuance.
>
> As for the hypo --a very tough one, as are all of the
> "unconstitutional conditions" hypos -- I would first ask for
> the government's reasons for the condition along with other
> factors that weigh in this balance. It may well be that there
> is no good reason for drawing this line other than hostility.
> "Romer-like"
>
> My point about "neutrality" being an insufficient tool is
> that I think the government should have more room to say
> "because this is religious and I wish to respect a line
> between the sacred and the secular by avoiding the former's
> support categorically" than "because this is indecent or has
> sexual content or....and I do not like it"
>
> Also, "neutrality" has a liberal equality ring to it, and I
> think our religious selves are more resistant to liberal
> methodologies than other aspects.
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