Having said that, I can think of ways to distinguish Eugene's hypo from Locke. But I have no way of knowing whether these distinctions would be acceptable or persuasive.
For example, assuming there are some good reasons for allowing states to limit even indirect state support for religious activities, the Court might still elect not to allow states to limit such spending in Eugene's hypo.
1.Given the extremely limited funds provided to welfare recipients (and the high cost of food, shelter, and medical care) and the lack of alternative sources of income available to welfare recipients, the Court might reasonably conclude that allowing welfare payments to be used for Bible studies or church dues creates a de minimis problem. Religious institutions will not ask for the payments (see my prior post) and welfare recipients are too much in need to offer payments gratuitously. The same analysis may not apply to the use of scholarships by theology majors studying for the Ministry. The cost to the college of allowing students to matriculate may be too high to allow all needy, qualified students to enroll. Thus, the schools will ask for tuition payments. And scholarship recipients planning on studying theology will use the scholarship to pursue their studies. Thus, the state's restriction on the religious use of welfare payments, unlike the restriction on the use of Promise scholarships, appears to involve a gratuitous chilling of occasional minor donations to religious institutions by the poor.
2. Scholarships for higher education may create greater risks of the state imposing eligibility conditions on the college a scholarship student attends. It is harder to imagine the state imposing conditions on church or synagogue membership or Bible studies classes at a local house of worship -- and the Court would probably not allow them anyway.
3. Although only a few Promise Scholarship recipients were using the scholarships for theological purposes, the Court might conclude that it would be difficult to allow this religious use of limited scholarships while insisting that more broadly available state scholarships could not be used for theological purposes. Thus, Promise Scholarship recipients may have their use of state funds limited because of the difficulty the Court would experience in distinguishing among funding arrangements that might subsidize a significant percentage of theology majors studying for the ministry and those that would apply to only a very few students. Allowing general welfare benefits to the truly indigent to be used for religious purposes may be more easily distinguished from other benefit arrangements -- because states do not commonly give money to people to use as they please -- and the situation in which they do (generic welfare benefits) creates a de minimis risk of state subsidies for religious activities.
these arguments may not be all that persuasive. But I don't think they are illogical.
Alan Brownstein UC Davis
At 11:09 AM 5/3/2005 -0700, you wrote:
I don't quite understand this. Steve himself says "A state may not want to use public funds to support religion and religious training. And it can constitutionally do so." In my hypothetical, that is *precisely* what the state is trying to do.
Now perhaps Steve's "unreality" point is simply that the provision is unlikely to be enacted. That's hard to tell; the U.S. is a big country, and lots of things that are unlikely generally may get enacted in one or another location under one or another circumstance. I realize that some hypos are so outlandish that they shed little light on the question. But is this really *that* outlandish? Is it really pointless to consider what would happen when a state is genuinely committed to the *very sentiments expressed in Steve's own quote*, and just takes them further than Washington did in Locke?
Finally, as to looking to the principles actually used by the Court, I would have thought that we ought to ask them to be logical -- perhaps not perfectly crisp and clear in all instances, but still generally logical.
Eugene
-----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Tuesday, May 03, 2005 10:31 AM To: Law & Religion issues for Law Academics Subject: Re: Locke v. Davey follow-up
The reason I find Eugene's hypo uninteresting is the unreality of it. Of course, I say this despite having seen many things I once thought from the realm of fantasy come to pass.
There is a difference between a tax and subsidy.
There is a difference between a direct payment and an indirect one.
There is a difference between programs with conditions and direct requirements without the inducements.
But, in every instance, the edges are blurry and if pushed too far, one thing has the undesired effect that the distinction was trying to make.
A state may not want to use public funds to support religion and religious training. And it can constitutionally do so. The fact that the intention can be circumvented or that the line drawn is imperfect or that some distinctions seem illogical or are in fact illogical simply means that the world is complex and that relationships of things one to another are tangled and weblike, not subject to linear logic.
Can one come up with a principled approach? The court tries to do so. Sometimes the principles are as vague as balancing competing interests of conflicting demands; or sometimes principles will conflict (speech v. establishment a la Rosenberger); or sometimes the situation just requires that the case and only the case before it be decided; or sometimes the principles are not hard-edged (like direct and indirect); or sometimes they relate to history and tradition; and sometimes they are teleological. Sometimes the principles are even logical or susceptible of syllogistic application. Indeed, most cases are like that. But not the ones on the edges.
We should not be looking for logic in freedom or religion as Eugene seems to be wanting us to do, but we should be looking to the principles actually used by the Court. We make a mistake when we look just to facts or to holding or to logic.
As Doug Laycock has pointed out better than I could have.
Steve
-- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/
A word is dead When it is said, Some say. I say it just Begins to live That day.
Emily Dickinson 1872
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