Point very well taken, thanks, Perry. But as you appear to agree, that doesn't mean Washington's line-drawing is incoherent or entirely unworkable, let alone unconstitutional. After all, it is *exactly* the same line that currently governs the use of direct aid to schools, social-service organizations, etc. -- the money or buildings or computers, etc., cannot be used for "specifically religious activities" (Tilton, Hunt, Roemer), "inherently religious activities" (Bowen v. Kendrick), or for "religious indoctrination" (SOC in Mitchell v. Helms).
What do these categories consist of? The Court has never really said. See Roemer, 426 US at 760 (declining to specify, and falling back on the assurance that "We must assume that the colleges, and the Council, will exercise their delegated control over use of the funds in compliance with the statutory, and therefore the constitutional, mandate. It is to be expected that they will give a wide berth to 'specifically religious activity,' and thus minimize constitutional questions."). Prayer is forbidden, of course. As is "indoctrination" (O'Connor's term of choice), whatever that may entail. And "the use of materials that have an explicitly reliugious content or are designed to inculcate the views of a particular religious faith." Kendrick, 487 US at 621. Beyond that, there surely are the difficult sorts of line-drawing problems that Perry identifies. But those are problems we've been living with in Establishment Clause law for an awfully long time, without any thought that the distinctions are constitutionally suspect or that they raise Larson issues of sect discrimination. -------------- Original message ---------------------- From: Perry Dane <[EMAIL PROTECTED]> > The line that Marty is drawing is perfectly sensible, and > enforceable in a public school context. The problem, though, is that > religious traditions and institutions often do, and are perfectly > entitled to, re-configure these sorts of categories according to > their own best lights. > > For example, most of the Bible and Jewish History courses, > and many, many, other courses, taught in the Rabbinical program at > the Jewish Theological Seminary, which ordains Conservative Rabbis, > could easily be taught in a public university's Judaic Studies > program. That is largely because the Conservative movement embraces > the "academic" historical-critical method in studying such > topics. For that matter, even the education at more "traditional" > yeshivas, which is generally averse to historical-critical inquiry, > might still be transposable to a public educational setting, in that > it largely focuses on the internal, logical, analysis of Talmudic and > other Jewish legal texts. Yet, in a larger sense, both JTS and > traditional yeshivas are clearly engaged in a devotional enterprise, > not to mention the fact that they are training clergy. (A further > complication is that, in Jewish thought, learning and study are > themselves devotional acts.) > > All this is not to say either that the Washington > restriction is incoherent or that Davey is wrong. I'm only > suggesting that they pose difficulties, and that those difficulties > arise in part from the many ways that religious traditions draw their > own lines between scholarly inquiry and devotional study. > > Perry > > > > Marty Lederman writes: > >The test in Washington is whether the required courses for the major > >involve instruction aimed at inculcating religious belief in the > >doctrine of a particular religion -- or disbelief. Are they > >devotional in nature or designed to induce religious faith or > >promote a particular religious truth? If so, they're > >ineligible. Or, perhaps more to the point: Could the courses be > >taught by a *public* university in Washington? > > > > > ******************************************************* > Perry Dane > Professor of Law > > Rutgers University > School of Law -- Camden > 217 North Fifth Street > Camden, NJ 08102 > > [EMAIL PROTECTED] > www.camlaw.rutgers.edu/bio/925/ > > Work: (856) 225-6004 > Fax: (856) 969-7924 > Home: (610) 896-5702 > ******************************************************* > > > _______________________________________________ > 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.
