Marty: I think you should read the CCU decision and its facts a bit more
carefully. What is going on in Colorado does indeed amount to denominational
discrimination within the meaning of Larson. And the scholarship program is
indeed a Zelman-like private choice program.
Unlike Davey, which did include pervasively sectarian colleges within the
program and excluded only devotional theology majors at any school, Colorado
allows scholarship funds to be used at some religious colleges but not at
others. Thus, there is no need for play in the joints between what the EC
permits and the FEC requires, because the EC forbids denominational
discrimination as the clearest command of the Clause.
Rick Duncan
[EMAIL PROTECTED] wrote:
I've barely glanced at the decision, but from what I've quickly read, I don't
think it's fair to call what Colorado has done denominational discrimination,
notwithstanding what the court wrote. It's simply a prohibition on funding
religious education itself, of *any* denomination. "Pervasively sectarian"
schools are automatically ineligible not because they are of a particular
denomination, but because (by definition) the funds would *necessarily* fund
religious teaching ("indoctrination") in such schools.
It's not clear to me whether any of the aid programs at issue here are
Zelman-like voucher programs. They don't appear to be. But if any of them were,
the only question would be whether the logic of Locke v. Davey applies here (I
think it probably does).
If, instead, some of the aid programs at issue involve direct aid, as in
Mitchell v. Helms, then the aid itself cannot go to CCU *under the federal
Constitution,* because under the governing O'Connor opinion (and even under the
Thomas plurality), direct *financial* aid may not be used for inculcation of
religious truth.
-------------- Original message ----------------------
From: Rick Duncan
> Art:
>
> Colorado has a college scholarship program that can be used to attend any
> public or private college including non-pervasively sectarian religious
> colleges
> but excluding pervasively sectarian religious colleges. In other words,
> students
> who attend non-pervasively sectarian (but nevertheless sectarian) religious
> colleges receive funding but those who attend "pervasively sectarian"
> colleges
> may not use their scholarships.
>
> The dist ct held that this amounts to denominational discrimination contrary
> to Larson and the "clearest command" of the EC, but that the state's interest
> in not funding pervasively sectarian education was a compelling interest that
> trumped the federal EC.
>
> Can this decision be correct? Does Colorado's interest in discriminating
> among
> religious colleges really trump the clearest command of the EC forbidding
> such
> denominational discrimination? Or, to paraphrase Doug Laycock, is this
> nothing
> more than the state saying "we disagree with the EC as it has been
> interpreted
> by the SCt?"
>
> Rick Duncan
>
> [EMAIL PROTECTED] wrote:
> It seems to me that if a state says, "we'll give grants to any social service
> agency that operates a 24/7 pregnancy prevention hotline," and denomination X
> says "we'd like a grant, but our faith forbids us from operating anything on
> the
> sabbath," and the state says "too bad, then," that's not what the
> Constitution
> forbids as "denominational discrimination." Some denominations just can't
> qualify for the terms of the grant. I don't know the Colorado Christian
> University case but it sounds like the same sort of thing.
>
> Art Spitzer
>
>
> In a message dated 7/23/07 10:54:49 PM, [EMAIL PROTECTED] writes:
>
>
> 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?
>
>
>
>
>
>
> **************************************
> Get a sneak peek of the all-new AOL at
> http://discover.aol.com/memed/aolcom30tour
> _______________________________________________
> 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.
>
>
>
> ---------------------------------
Shape Yahoo! in your own image. Join our Network Research Panel today!
From: Rick Duncan <[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: Re: EC & Compelling Interest
Date: Tue, 24 Jul 2007 03:43:51 +0000
Art:
Colorado has a college scholarship program that can be used to attend any
public or private college including non-pervasively sectarian religious
colleges but excluding pervasively sectarian religious colleges. In other
words, students who attend non-pervasively sectarian (but nevertheless
sectarian) religious colleges receive funding but those who attend "pervasively
sectarian" colleges may not use their scholarships.
The dist ct held that this amounts to denominational discrimination contrary
to Larson and the "clearest command" of the EC, but that the state's interest
in not funding pervasively sectarian education was a compelling interest that
trumped the federal EC.
Can this decision be correct? Does Colorado's interest in discriminating
among religious colleges really trump the clearest command of the EC forbidding
such denominational discrimination? Or, to paraphrase Doug Laycock, is this
nothing more than the state saying "we disagree with the EC as it has been
interpreted by the SCt?"
Rick Duncan
[EMAIL PROTECTED] wrote:
It seems to me that if a state says, "we'll give grants to any social service
agency that operates a 24/7 pregnancy prevention hotline," and denomination X
says "we'd like a grant, but our faith forbids us from operating anything on
the sabbath," and the state says "too bad, then," that's not what the
Constitution forbids as "denominational discrimination." Some denominations
just can't qualify for the terms of the grant. I don't know the Colorado
Christian University case but it sounds like the same sort of thing.
Art Spitzer
In a message dated 7/23/07 10:54:49 PM, [EMAIL PROTECTED] writes:
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?
**************************************
Get a sneak peek of the all-new AOL at
http://discover.aol.com/memed/aolcom30tour
_______________________________________________
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.
---------------------------------
Shape Yahoo! in your own image. Join our Network Research Panel today!
_______________________________________________
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.
---------------------------------
Take the Internet to Go: Yahoo!Go puts the Internet in your pocket: mail, news,
photos & more. _______________________________________________
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.
