I disagree with Rick's analysis as well. The decision rested in no small part on Establishment Clause values with a long historical pedigree starting with James Madison. Government funding of the education of ministers is as close to establishment of religion as you can get short of the sorts of establishments in place during the founding era. It would have been ahistorical to have decided the case purely on free speech grounds. In any event, this is not pure speech -- it is government funding education directed at future careers. That was not the issue in either Rust or Rosenberger, where speech was at least arguably a major element of the policy challenged. Rick is sounding like the movement that would define away the Establishment Clause by making every potential disestablishment case an individual rights case (whether free exercise or speech). Rosenberger was a 5 to 4 decision that divided on that fault line -- with the majority speaking in speech terms and the dissent in est cl terms. The closeness of that decision and the preceding est cl case law combined with the history should have made Davey a toss-up and not the slam dunk some seem to think it should have been. This relates to the orthodoxy point I made yesterday. Marci Sent from my Verizon Wireless BlackBerry
-----Original Message----- From: Rick Duncan <nebraskalawp...@yahoo.com> Date: Mon, 4 May 2009 16:13:38 To: Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu> Subject: Re: Bowman v. U.S. _______________________________________________ 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.
