----- Forwarded message from icl...@law.gwu.edu -----
Date: Mon, 4 May 2009 19:04:16 -0400 (EDT)
From: "Ira (Chip) Lupu" <icl...@law.gwu.edu>
Subject: Re: Bowman v. U.S.
To: Douglas Laycock <layco...@umich.edu>
Cc: Rick Duncan <nebraskalawp...@yahoo.com>
Doug:
I cannot post from home -- perhaps you will post this for me:
If the Promise Scholarship program does not constitute a forum for speech, I
think we can be quite sure that the DoD retirement credit program for public
service likewise does not constitute such a forum. All the government has to
do is satisfy minimum rationality standards with respect to what kinds of
public service it will support. These are just not "free speech" issues. And
I believe I already did respond to Rick's hypo about global warming and gay
marriage -- if service to organizations that advocate in those ways is just too
controversial, the state need not support that service (though of course it
cannot outlaw the service).
It's rather like those specialty license plates in Florida -- the state can
approve one with an image of Jesus, and refuse to approve a plate with an image
of A-Rod or Osama. Yes, such plates are government speech, fully subject to
the Establishment Clause. And the retirement credit program too is a form of
government speech, about what the government will support with its resources,
as well as a spending program.
Chip
---- Original message ----
>Date: Mon, 04 May 2009 18:45:59 -0400
>From: Douglas Laycock <layco...@umich.edu>
>Subject: Re: Bowman v. U.S.
>To: religionlaw@lists.ucla.edu
>
> Rick's distinction is quite plausible as a matter of
> first principle. But Davey is so clearly based on
> Rust that I think we have to assume that Rehnquist
> meant to reject Rick's distinction. Davey's view
> seems to be that anything the government pays for is
> sufficiently governmental that the government can
> pick and choose what it wants to support.
>
> That principle has extreme implications, as Rick's
> hypotheticals suggest. It must have a stopping
> point somewhere, but the Court has not left itself
> with many tools to find that point.
>
> Quoting Rick Duncan <nebraskalawp...@yahoo.com>:
>
> > Well, Chip, Rust is about government speech as
> part of government
> > health care programs, not about a govt decision to
> encourage govt
> > workers to volunteer in private non-profit
> activities except those
> > with forbidden viewpoints. If the govt counted all
> volunteer
> > activities "except volunteer activities for an
> organization that
> > promotes abortion rights"--in other words,
> volunteering for pro-life
> > groups counts but not for pro-choice groups--I
> think this would
> > constitute unconstitutional viewpoint
> discrimination.
> >
> > In other words, in Bowman the govt is facilitating
> private speech,
> > not taking a speech position itself.
> >
> > So, Chip, how do you answer my Bowman hypo:
> >
> > How would you all analyze the Free Speech Clause
> issue in a case that
> > was like Bowman except the exclusion covered
> "participation in
> > activities of schools or organizations teaching or
> advocating about
> > the need to reduce global warming or about
> marriage from a gay rights
> > perspective?"
> >
> > Would
> > it violate the Free Speech Clause to allow
> military service personnel
> > to accumulate pension rights via volunteer service
> in all non-profits
> > except those excluded in the hypo above? If so,
> don't we have the same
> > free speech issue when the exclusion concerns
> volunteering for schools
> > teaching from a religious perspective?
> >
> > Cheers, Rick
> >
> >
> > 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, 1:14 PM
> >
> > And how would you, Rick, analyze the free speech
> issue if the
> > the exclusion covered:
> > "participation in activities of organizations
> > teaching about, counseling, advocating, or
> performing abortions"? In
> > Locke, and in the abortion case, and in your
> hypothetical, the
> > government must only have a non-arbitrary reason
> for the exclusion.
> > In Locke, the non-arbitrary reason had to do with
> not funding the
> > training of clergy; in my hypothetical, the reason
> would be just like
> > that in Rust v. Sullivan and its progeny (that the
> government is
> > "pro-life," and does not want its resources to
> support a certain
> > cause, thought immoral by many citizens). Perhaps
> your hypothetical
> > would similarly be OK, particularly on the gay
> marriage point.
> > Excluding organizations that teach "about the need
> to reduce global
> > warming" is a bit tougher, but not much -- the
> cause is
> > controversial, and the state does not want to be
> creating incentives
> > for people to advance that cause. They remain
> free to advance it
> > with their own resources.
> >
> > In Bowman, the non-arbitrary reason for exclusion
> is not so easy to
> > find, but perhaps it is designed to keep the
> government away from the
> > question of whether a particular religious
> organization serves any
> > public good (the organization might get a tax
> exemption, but those
> > who help it can't get this sort of credit toward a
> military
> > pension). If all religions must be included in
> the retirement credit
> > system, perhaps the government would be a bit
> stingier in recognizing
> > a religion for tax exemption purposes. That
> doesn't sound to me like
> > a healthy constitutional trade-off.
> >
> > The rule upheld in Bowman is a product of a now
> abandoned
> > constitutional regime, which is why Bob Tuttle and
> I were surprised
> > that DoD still had this rule, and that DOJ
> defended it. But its
> > provenance does not make it unconstitutional,
> especially in light of
> > Locke.
> >
> > Chip
> >
> > ---- Original message ----
> >> Date: Mon, 4 May 2009 12:38:43 -0700 (PDT)
> >> From: Rick Duncan <nebraskalawp...@yahoo.com>
> >> Subject: Re: Bowman v. U.S.
> >> To: Law & Religion issues for Law Academics
> <religionlaw@lists.ucla.edu>
> >>
> >> How would you all analyze the Free Speech Clause
> issue in a
> >> case that was like Bowman except ?"
> >>
>
> >> Would it violate the Free Speech Clause to allow
> military
> >> service personnel to accumulate pension rights
> via volunteer
> >> service in all non-profits except those excluded
> in the hypo
> >> above? If so, don't we have the same free speech
> issue when
> >> the exclusion concerns volunteering for schools
> teaching
> >> from a religious perspective?
>
> >>
>
> >> Again, if the dictum in Locke v. Davey applies,
> it applies
> >> to these secular speech exclusions as well, since
> Rehnquist
> >> merely concluded that a scholarship is not a
> forum
> >> triggering the Free Speech Clause. So, under
> Davey, a
> >> scholarship exclusion for students majoring in
> "gender
> >> studies from a feminist perspective" would also
> have failed
> >> to trigger the Free Speech Clause. If this seems
> wrong, it
> >> is because it does indeed implicate the FSC to
> take the
> >> viewpoint of the major into account when
> awarding
> >> scholarships such as the Promise Scholarship. The
> Rehnquist
> >> dictum in Davey is both unreasoned and wrong.
>
> >>
>
> >> Rick Duncan
>
> >> Welpton Professor of Law
>
> >> University of Nebraska College of Law
>
> >> Lincoln, NE 68583-0902
>
> >>
>
> >> --- On Mon, 5/4/09, Volokh, Eugene
> <vol...@law.ucla.edu>
> >> wrote:
>
> >>
>
> >> From: Volokh, Eugene <vol...@law.ucla.edu>
>
> >> Subject: Bowman v. U.S.
>
> >> To: "Law & Religion issues for Law Academics"
>
> >> <religionlaw@lists.ucla.edu>
>
> >> Date: Monday, May 4, 2009, 9:41 AM
>
> >>
>
> >> 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
>
> >>
> _______________________________________________
>
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>
> >> ________________
> >> _______________________________________________
> >> To post, send message to
> Religionlaw@lists.ucla.edu
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> >>
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[2]
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> 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[3]
> >
> > 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
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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
>________________
>_______________________________________________
>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[4]
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>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
----- End forwarded message -----
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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