Okay, Doug, then how do you decide the Colorado Christian University case in
which the state has engaged in denominational discrimination against
pervasively sectarian schools, but claims to have a state anti-establishment
compelling interest (in not funding sectarian schools) that trumps the federal
EC violation?
Is this a case in which the state compelling interest in not funding certain
religious colleges is merely a disagreement with the clearest command of the
federal EC prohibiting denominational discrimination?
Rick Duncan
Douglas Laycock <[EMAIL PROTECTED]> wrote:
I agree with David. I very briefly floated this idea as deserving
exploration with respect to inner city schools sometime long ago -- in 1981 I
think, in Columbia. I don't think the Court ever entertained the idea for a
minute in the Lemon era, and of course what is happening now is that they are
moving in the direction of saying that aid to these programs does not violate
the Establishment Clause even prima facie, so the issue of justification cannot
arise.
The trouble with Rick Duncan's examples is that the alleged compelling
interests are simply negations of the clause. Folks here really really want
government support for their religion, and that desire is a compelling interest
that justifies an exception to the rule against government support for
religion. There are obvious analogies in Mississippi in 1965, and among some
affirmative action advocates today.
Compelling interests don't arise out of disagreement with the Court's
interpretation of the underlying right. Compelling interests generally arise
out of some cross cutting need that arguably justifies an exception at the
point of its intersection with the constitutional right. Occasionally the area
of intersection is pretty large, but it cannot just be that we really really
don't like the underlying right as interpreted by the Court. "It should go
without saying that the vitality of these constitutional principles cannot be
allowed to yield simply because of disagreement with them," the Court said in
Brown II. That aspiration has not actually been achieved, but we can hardly
make it doctrine that disagreement overrides constitutional rights.
Quoting "Saperstein, David (RAC)" <[EMAIL PROTECTED]>:
> I would assume that the area of EC issues that is most tempting to think
> of in terms of compelling interest has to do with government
> expenditures not speech. If e.g. studies actually showed that religious
> based substance treatment programs were decisively more effective than
> non-religious programs, is there a compelling government interest in
> addressing effectively the drug epidemic or in providing effective
> (often life-saving) health treatments for eligible patients that might
> justify funding to expand such programs? In the case of damage or
> destruction from natural catastrophes, might a compelling interest test
> justify direct payments to rebuild churches? Might the compelling
> interest in protecting more likely terrorism targets e.g. NY City based
> synagogues, churches, mosques justify direct government funding for
> enhancing security?
>
>
>
> As I assume most of you know, I write as someone who in the main opposes
> such funding as unconstitutional and few courts have taken up this line
> but the funding arena is where I find folks falling back intuitively on
> this kind of thinking.
>
>
>
>
>
> ________________________________
>
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael
> Sent: Monday, July 23, 2007 7:06 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: EC & Compelling Interest
>
>
>
> Isn't the whole point of the EC that the government cannot be permitted
> to be a "willing speaker" when it comes to God-talk? And isn't this the
> reason why a per se analysis is more consistent with that purpose than
> any compelling interest test might be? The EC contains its own
> compelling interest, doesn't it? And isn't that compelling interest
> essentially freedom FROM religion? (Why, for the sake of discussion,
> should X's freedom OF religion trump Y's freedom FROM religion? And
> isn't it true, therefore, that large claims of freedom OF religion, of
> Free Exercise, should be viewed with a great deal of suspicion
> especially given the categorical nature of the EC, of freedom FROM
> religion, whereas there is no comparable categorical freedom OF
> religion? Of course my Protestant Empire thesis provides a useful way
> of assessing both freedom FROM and freedom OF religion claims. I have
> another Protestant Empire piece coming out shortly which looks at this
> problem in part through the lens or prism of proselytizing in the public
> schools and elsewhere.)
>
>
>
> Isn't it also true, therefore, that to characterize the objection to the
> display as a "heckler's veto" begs the question to be decided? If the
> government cannot be a willing speaker then the "censor" is not the
> "heckler" but is the EC itself. It is interesting to recall that the
> pre-Incorporation common school religion cases divided on this point.
> The state courts that upheld prayer and Bible reading in public schools
> almost always characterized the objectors as "hecklers." The minority
> of state courts that struck down or limited these practices never used
> such terminology in describing those who objected to these religious
> exercises.
>
>
>
> Was the pre-Incorporation state court minority right when it struck down
> or limited Bible reading and prayer in the public schools? Were Engel
> and Schempp correctly decided?
>
>
>
> ________________________________
>
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
> Sent: Monday, July 23, 2007 5:14 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: EC & Compelling Interest
>
>
>
> Of course, one of the problems with a compelling interest test is no one
> really knows what interests are extraordinarily important and which are
> less so. And different folks may have different scales of importance.
>
>
>
> In the case of a holiday display, one could view this as a case
> involving a willing speaker (the county govt) and a willing audience
> (those who wish to enjoy the holiday expression) who are being censored
> by a heckler's veto under the EC. I think it is important that govt
> speech be available to those who wish to receive it. Is it
> "extraordinarily important?" I don't know. I would at least like to see
> the Ct apply the compelling interest test and explain why this
> speech/non-censorship interest is not important.
>
>
>
> Alternatively, the compelling interest in such cases might be the govt's
> strong interest in diversity and equal regard for religious citizens in
> a pluralistic public square. If all sorts of secular holidays are
> celebrated in the public square (gay pride, cinco de mayo, Columbus Day,
> pork producers day, etc), many people of faith might well feel
> disrespected and deeply injured by being the only subgroups in the
> community whose holidays are not celebrated.
>
>
>
> And what about the compelling interest of school officials to decide
> which curriculum best meets the needs of students in the public schools
> trumping EC attacks on ID, music curriculum, and the Pledge of
> Allegiance?
>
>
>
> Just some thoughts. I don't think these cases are as easy as Eugene
> seems to think they are, because what may not seem important to some may
> seem very important to others. And the fact that the Ct doesn't even
> play the game suggests that maybe the reason is that there is no game to
> be played because the EC applies as a categorical rule without a
> balancing test.
>
>
>
> Rick Duncan
>
> "Volokh, Eugene" <[EMAIL PROTECTED]> wrote:
>
> Rick: You might well be right, but it's hard to tell without
> some cases that test our sense of this, by coming out
> differently under
> strict scrutiny than under per se invalidation. It's hard to see
> a
> compelling interest behind government holiday displays -- one
> can surely
> argue that endorsement shouldn't be seen as implicating the
> Establishment Clause, but it's harder to say that it does
> implicate it
> but that it's just extraordinarily important to allow it.
>
> Eugene
>
>
> ________________________________
>
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Rick
> Duncan
> Sent: Sunday, July 22, 2007 4:45 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: EC & Compelling Interest
>
>
> When the Ct strikes down a law under the EC, it usually declares
> the law unconstitutional w/out any type of "scrutiny." Why
> doesn't the
> Ct at least go through the motions of applying the compelling
> interest
> test? Is the EC an absolute, categorical rule prohibiting laws
> that
> establish religion?
>
> Take the Nativity display in Allegheny County--should the county
> govt argue that it has a compelling interest in recognizing that
> many
> persons are willing recipients of the county's speech
> recognizing that
> some of its citizens are celebrating a religious holiday on Dec
> 25? Why
> should the Pl, whose liberty is not in any way restricted by a
> passive
> holiday display, have the right to censor a display that means a
> great
> deal to others in the community who wish to view the display?
> Why not at
> least analyze the compelling interest test in cases like these?
>
> I have always assumed that the EC here is a structural
> limitation on the power of govt, one that denies govt the power
> to
> "endorse" religion even if it has good reasons to put up the
> display.
>
> Am I wrong?
>
> Rick Duncan
>
> "Volokh, Eugene" wrote:
>
> Rick asks an excellent question; the doctrinal
> answer seems to be that some behavior -- such as coercion of
> religious
> practice -- is categorically unconstitutional, with no strict
> scrutiny
> exception, but the Court often talks about rights as being
> absolute and
> then turns around and sets up some strict scrutiny exception
> (even if it
> concludes that exception is inapplicable). Compare, e.g.,
> Everson's
> talk of no preference among religions with Larson v. Valente's
> strict
> scrutiny for denominational discrimination (under the
> Establishment
> Clause, in fact).
>
> The tough question is to come up with a concrete
> example of where some compelling interest would indeed be in
> play.
> Rick, what examples did you have in mind?
>
> Eugene
>
>
>
>
> ________________________________
>
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Rick
> Duncan
> Sent: Sunday, July 22, 2007 12:07 PM
> To: Law & Religion issues for Law Academics
> Subject: EC & Compelling Interest
>
>
> A question for this august body of learned
> friends:
>
> When a state violates the EC, is this absolutely
> unconstitutional or may the state attempt to show a compelling
> interest
> to justify an establishment? Does any SCt case clearly focus on
> this
> issue? Are there good law review articles addrsssing it?
>
> Does it matter what kind of EC violation the
> state has committed?
>
> Cheers, Rick Duncan
>
>
>
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
>
> "It's a funny thing about us human beings: not
> many of us doubt God's existence and then start sinning. Most of
> us sin
> and then start doubting His existence." --J. Budziszewski (The
> Revenge
> of Conscience)
>
> "Once again the ancient maxim is vindicated,
> that the perversion of the best is the worst." -- Id.
> ________________________________
>
> Shape Yahoo! in your own image. Join our Network
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> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
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>
>
>
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
>
> "It's a funny thing about us human beings: not many of us doubt
> God's existence and then start sinning. Most of us sin and then
> start
> doubting His existence." --J. Budziszewski (The Revenge of
> Conscience)
>
> "Once again the ancient maxim is vindicated, that the perversion
> of the best is the worst." -- Id.
>
> ________________________________
>
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> Check out fun summer activities for kids.
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> _______________________________________________
> 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.
>
>
>
> Rick Duncan
> Welpton Professor of Law
> University of Nebraska College of Law
> Lincoln, NE 68583-0902
>
>
>
>
> "It's a funny thing about us human beings: not many of us doubt God's
> existence and then start sinning. Most of us sin and then start doubting
> His existence." --J. Budziszewski (The Revenge of Conscience)
>
>
>
> "Once again the ancient maxim is vindicated, that the perversion of the
> best is the worst." -- Id.
>
>
>
> ________________________________
>
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>
Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
_______________________________________________
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Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"It's a funny thing about us human beings: not many of us doubt God's existence
and then start sinning. Most of us sin and then start doubting His existence."
--J. Budziszewski (The Revenge of Conscience)
"Once again the ancient maxim is vindicated, that the perversion of the best
is the worst." -- Id.
---------------------------------
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