I think that when it comes to religious organizations, the Religion Clauses create a zone of autonomy that may have quite different contours than is the case with newspapers and universities. Certainly, as to universities, how do we explain *public* universities? Obviously there we permit, if not insist upon, rather pervasive monitoring, don't we? And even with regard to private universities, governments regulate any number of activities and functions that they do not regulate when it comes to religious organizations. Employment comes to mind, just for openers.
Newspapers are perhaps more interesting. But, here again, doesn't the government intrude into such areas as employment in ways that the government does not in connection with religious organizations? Surely there are other examples, none of which seem particularly controversial, troublesome, or problematic. (By the way, recall the "excessive entanglement" that existed with regard to *broadcast* media by virtue of licensing requirements regarding the use of assigned frequencies in the electro-magnetic spectrum.) The autonomy of universities and newspapers seems to generate less practical and less constitutional concern than does the autonomy of religious institutions. And, I think, the constitutional text suggests -- if not commands -- that this be so. -----Original Message----- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Saturday, April 08, 2006 3:42 PM To: Law & Religion issues for Law Academics Subject: RE: Excessive entanglement Yes, but why was the monitoring (a large part of the asserted entanglement) an impermissible entanglement? I take it that this is because it would risk putting the religious schools too much under the supervision and potential control of the government. The monitoring would involve "[a] comprehensive, discriminating, and continuing state surveillance," and would require "state inspection and evaluation of the religious content of a religious organization," which is "pregnant with dangers of excessive government direction of church schools and hence of churches," and with "the danger that pervasive modern governmental power will ultimately intrude on religion." But wouldn't continuing state surveillance, inspection, evaluation, direction, and intrusion be just as bad for newspapers and universities? As to divisive political potential, much has been said about it elsewhere; I agree with those who say that this should not be part of the Establishment Clause inquiry for many reasons, one of which is that it's far from clear which would lead to more division among religious lines: making it easy for people to cheaply opt out of public schools into religious schools, or to fund only public schools and thus increase have more parents who are dissatisfied with their children's schools for religious reasons. Eugene > -----Original Message----- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of > Newsom Michael > Sent: Tuesday, April 04, 2006 10:28 AM > To: Law & Religion issues for Law Academics > Subject: RE: Excessive entanglement > > > Isn't Lemon v. Kurtzman a good place to begin a meaningful > inquiry into the contours of "excessive entanglement?" > Burger identifies several considerations that informed the > judgment of the Court on this point: "the substantial > religious character of the[] church-related schools'; the > need to monitor the financial and programmatic limitations > and conditions of the Pennsylvania and Rhode Island statutory > schemes; and "the divisive political potential of these state > programs." > > I am not sure that "excessive entanglement" with private > universities or newspapers bears any resemblance to > "excessive entanglement" with religious organizations, > particularly parochial schools. So the question is not > whether one is worse than the other, unless one wants to > consider whether apples are worse than oranges. _______________________________________________ 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.
