Couple of quick points re Locke v. Davey: 1. The burden here is much more substantial than in Davey--remember, Joshua Davey could have simply dropped his major for 2 years and used his full scholarship to take the exact same couses at the same college. To the extent that Davey turned on the Ct's finding of only a minor burden on free ex, this case seems to be a much stronger one for the Pl.
2. The Free Speech issue was not before the Ct in Davey (the Ct granted cert only on the Free Ex issue). Thus, Rehnquist's unsupported conclusory assertion in a brief footnote in Davey, that a scholarship did not create a forum for speech, was dictum and completely unreasoned dictum at that. I have written about this at some length: Duncan, Locked Out: Locke v. Davey and the Broken Promise of Equal Access, 8 U. Pa. J. Const. L. 699 (2006) Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 --- On Mon, 5/4/09, Ira (Chip) Lupu <icl...@law.gwu.edu> wrote: From: Ira (Chip) Lupu <icl...@law.gwu.edu> Subject: Re: Bowman v. U.S. To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu> Date: Monday, May 4, 2009, 9:55 AM Bob Tuttle and I prepared an extended analysis (for the Roundtable on Religion and Social Welfare Policy) on Bowman v. U.S. at the time of the district court's decision in the case. The government's position seemed quite out of line with the GWB Faith-Based Initiative, but the outcome does seem correct under Locke v. Davey. And this is a program for retirement credit for former members of the Armed Forces -- hard to see any better free speech claim here than there was in Locke (where the claim was summarily rejected). Our analysis is here: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=62 Chip ---- Original message ---- >Date: Mon, 4 May 2009 09:41:16 -0700 >From: "Volokh, Eugene" <vol...@law.ucla.edu> >Subject: Bowman v. U.S. >To: "Law & Religion issues for Law Academics" <religionlaw@lists.ucla.edu> > >Any thoughts on Bowman v. U.S., a Sixth Circuit case decided last >December but just redesignated two weeks ago as being for publication? >Federal law allows a wide range of public and community service by >military personnel - including working for organizations that provide >"elementary, secondary, or postsecondary school teaching," or "any other >public or community service" -- to "count toward [one's] years of >service needed to obtain a full twenty-year military retirement." But >the program excludes participation in activities of "organizations >engaged in religious activities, unless such activities are unrelated to >religious instructions, worship services, or any form of >proselytization" (as well as in activities of for-profit businesses, >labor unions, and partisan political organizations). > >Thus, for instance, if someone were volunteering to teach in a school >program aimed at spreading various controversial views on environmental >responsibility, or social justice, or civil liberties, that would >presumably count. But if someone were volunteering to teach in a school >program aimed at spreading religious views, that would not count. The >Sixth Circuit upheld this against a Free Exercise Clause challenge, >citing Locke v. Davey. Is that right? What should the result have been >under the Free Speech Clause, if such a claim had been made (presumably >relying on Rosenberger)? > >Eugene >_______________________________________________ >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. Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 _______________________________________________ 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.
