Locke v. Davey -- Blaine Amendments

[Marty Lederman]

It's great to see Professor Garnett contributing to 
the list on Davey; he has addressed these issues with uncommon insight, 
rigor and nuance, and our discussion undoubtedly will be richer and more 
thought-provoking for his participation.
 
A great number of things in the Chief's opinion 
may, and certainly will, be subject to serious debate.  I am a 
bit perplexed, however, that Prof. Garnett has saved his strongest fire for the 
footnote 7 discussion of the Blaine Amendment.  For one thing, I doubt very 
much that the outcome of Davey turned on the historical question 
of "intent"; I think it highly unlikely that the Court would be 
inclined to permit the "dead hand" of 115-year-old underlying intent at 
the federal level to determine the constitutionality of a modern 
state program.  In fairness to Rick, however, that is not what troubles 
him. He is, instread, "shock[ed]" by the "grossly mistaken assertion that such 
[anti-Catholic] views had no role in . . . relation to the Washington 
provisions at issue," and by "the Court's naked assertion that the relevant 
Washington provisions, unlike the proposed Blaine Amendment proper, owe 
nothing to anti-Catholicism."
 
There is definitely a disconnect here, and I would 
genuinely welcome clarification.
 
There are two pertinent Washington 
Constitutional provisions, both of which were included in the original 
Washington Constitution.
 
The first, Article IX, section 4, 
provides that "[a]ll schools maintained and supported wholly or in part by the 
public funds shall be forever free from sectarian control or 
influence."  Such a provision certainly was the result of the federal 
enabling Act of 1889, which required the state constitution to include a 
provision "for the establishment and maintenance of systems of public schools, 
which shall be ... free from sectarian control."  As I understand the 
history (which is to say, far less than Prof. Garnett), it is this sort of 
prohibition on "sectarian control or influence" over government funds that 
was, at least in part and in some jurisdictions, animated by anti-Catholic 
animus.
 
But that is not the constitutional 
provision that was the genesis of the statute at issue in 
Davey.
 
Instead, the "divinity major" statute was an 
attempt to implement a particular "no funding of religious instruction" 
prohibition in the second relevant constitutional provision, 
Article I, section 11, which reads as follows:
 
"Religious Freedom. Absolute 
freedom of conscience in all matters of religious sentiment, belief and worship, 
shall be guaranteed to every individual, 
and no one shall be molested or disturbed in person or property on account of 
religion; but the liberty of conscience hereby secured shall not be so construed 
as to excuse acts of licentiousness or justify practices inconsistent with the 
peace and safety of the state. No public money or property shall be 
appropriated for or applied to any religious worship, exercise or 
instruction, or the support of any religious establishment.  
Provided, however, That this article shall not be so construed as to 
forbid the employment by the state of a chaplain for such 
of the state custodial, correctional, and mental 
institutions, or by a county's or public hospital district's hospital, health 
care facility, or hospice, as in the discretion of the legislature may seem 
justified. No religious qualification shall be required for any public office or 
employment, nor shall any person be 
incompetent as a witness or juror, in consequence of his opinion on matters of 
religion, nor be questioned in any court of justice touching his religious 
belief to affect the weight of his testimony."
  
This Amendment was not required 
by the Enabling Act.  The title and the first sentence plainly were 
not animated by religious animus -- they find their genesis and inspiration in 
the federal Free Exercise Clause and similar tenets of religious freedom.  
The proviso about chaplains -- added in 1903 -- is a remarkable 
pro-accommodationist provision.  The final sentence is clearly inspired by 
the religious test ban of article VI of the Federal Constitution.  That 
leaves the "no public money for religious instruction" sentence.  Was 
that sentence -- and that sentence alone in the midst of a patently 
pro-religious-freedom amendment -- motivated by anti-Catholic animus?  I 
don't know.  But as far as I do know, nothing in the briefs to the Court 
gave any indication that it was.
 
The State, for its part, claimed in its Reply Brief 
that "[n]othing in the history of the adoption of article I section 
11 suggests that it was the product of anti-Catholic prejudice," and 
explained -- quite plausibly, at least on the face of things -- that inclusion 
of the "no funding" prohibition as part of a broader statement of free exercise 
and free conscience "traces back to the Virginia Bill of Religious Freedom" and 
its admonition that "to compel a man to furnish contribut

FW from Rick Garnett: Re: Locke v. Davey

[Volokh, Eugene]

(Rick Garnett wrote this post, and asked me to forward it:)

In my view, the Court's opinion in Davey is extremely disappointing. 
Particularly frustrating, though, is the utterly unconvincing effort, in a
footnote, to bracket the anti-Catholicism surrounding the Blaine Amendment,
and the grossly mistaken assertion that such views had no role in or
relation to the Washington provisions at issue (and the many others like
it).  

In light of the work done by Philip Hamburger, John McGreevy, and many
members of this list -- the content of which was made available to the Court
in several amicus briefs (including one in which, I admit, I participated)
-- the Court's naked assertion that the relevant Washington provisions,
unlike the proposed Blaine Amendment proper, owe nothing to anti-Catholicism
is (to me anyway), well, shocking.

To be clear, my claim here is not that historical facts about 19th century
anti-Catholicism should control the outcome in this case.  It is certainly
not that present-day defenders of Washington's policy are anti-Catholic.  I
had hoped, though, that the facts would not be ignored or misrepresented.
Justice Black, perhaps, was excusably ignorant in the construction of the
narrative he constitutionalized in Everson.  I don't think this Court has
that excuse. 
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RE: Locke v. Davey -- the Equal Protection Question

[Conkle, Daniel O.]

I see Alan's concern, and this may be semantics on my part, but I would
read both the Establishment Clause (Larson) and the Free Exercise Clause
(note Lukumi's citation to Larson in discussing the religious
gerrymander point) to directly forbid, directly and virtually
absolutely, any type of sectarian discrimination between or among
religions -- without any need to cite or rely upon the Equal Protection
Clause.  I don't think Locke v. Davey changes that.  More generally, I
think the Religion Clauses are properly understood to forbid various
other types of religion-based discrimination -- the purposeful favoring
of religion in general or the purposeful disadvantaging of religion in
general, with various exceptions, nuances, etc.  Cf. Locke v. Davey,
which adds a new wrinkle.  In other words, I think the constitutional
policy of nondiscrimination *as to religion* -- whatever its precise
contours -- is best traced to the constitutional language that addresses
religion as such, and not to the more generic language of "equal
protection."  But, as I say, this may be semantics.

Dan Conkle
**
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**


-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of A.E. Brownstein
Sent: Wednesday, February 25, 2004 6:42 PM
To: Law & Religion issues for Law Academics
Subject: RE: Locke v. Davey -- the Equal Protection Question


I think that argument probably works if one reads the Establishment
Clause 
broadly to prohibit discrimination among religious communities. But 
certainly, the anti-discrimination concerns of the equal protection
clause 
extend far beyond what the free exercise clause requires. For example, 
imagine a city ordinance that prohibits any non-Christian house of
worship 
from being constructed that is taller than the highest church in town.
This 
doesn't violate the free exercise clause rights of anyone (It is
doubtful 
that anyone's religion requires them to build a house of worship of a 
particular height -- relative to other houses of worship in town.) If it

violates the Establishment Clause, it is only because the Establishment 
Clause is being interpreted to subsume the equal protection clause's 
anti-discrimination principles.

Alan Brownstein
UC Davis



At 02:21 PM 2/25/2004 -0500, you wrote:
>content-class: urn:content-classes:message
>Content-Type: multipart/alternative;
> boundary="_=_NextPart_001_01C3FBD4.8FEADE9C"
>
>I'm inclined to think that the answer to Marty's question is - or
should 
>be - that if the Religion Clauses (and free speech principles) are not 
>offended by a religious classification, then the Equal Protection
Clause 
>should not be offended either, because any equal protection argument is

>simply piggy-backing on the constitutional policies of the Religion 
>Clauses (and/or free speech principles).   On this view, a religious 
>classification is - or should be - constitutionally suspect if, but
only 
>it, it (presumptively) violates the principles and values of the First 
>Amendment.  Right?
>
>Dan Conkle
>**
>Daniel O. Conkle
>Professor of Law
>Indiana University School of Law
>Bloomington, Indiana  47405
>(812) 855-4331
>fax (812) 855-0555
>e-mail [EMAIL PROTECTED]
>**
>-Original Message-
>From: [EMAIL PROTECTED] 
>[mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman
>Sent: Wednesday, February 25, 2004 1:58 PM
>To: Law & Religion issues for Law Academics
>Subject: Re: Locke v. Davey -- the Equal Protection Question
>
>Very minor question about a potentially important footnote point in 
>Davey.  The Court holds in footnote 3 that where the Free Exercise
Clause 
>is not violated, religious discrimination is subject only to 
>rational-basis scrutiny under the Equal Protection Clause -- citing 
>Johnson v. Robison, which suggested the same thing.  Is this correct?
Is 
>there a theory of the 14th Amendment that would suggest otherwise?
>
>The Court has often indicated that religious discrimination is subject
to 
>strict scrutiny under the EPC -- without ever, as far as I know,
issuing a 
>holding that depended on such a conclusion.  But cf. Fowler, 345 U.S.
at 
>527-28 (Frankfurter, J., concurring).  Of course, many of us have been 
>wary of this equal protection argument because to take it seriously
would 
>be to call into question religious accommodations.  But assume for the 
>moment that religious discrimination is generally subject to strict 
>scrutiny under the EPC.  If so, is there any good reason why the
scrutiny 
>should diminish in the absence of a Free Exercise violation?  In other 
>words, should there ever be a case in which the Equal Protection Clause

>prohibits a form of religious discrimination that the FEC permits

RE: Locke v. Davey -- the Equal Protection Question

[A.E. Brownstein]

I think that argument probably works if one reads the Establishment Clause 
broadly to prohibit discrimination among religious communities. But 
certainly, the anti-discrimination concerns of the equal protection clause 
extend far beyond what the free exercise clause requires. For example, 
imagine a city ordinance that prohibits any non-Christian house of worship 
from being constructed that is taller than the highest church in town. This 
doesn't violate the free exercise clause rights of anyone (It is doubtful 
that anyone's religion requires them to build a house of worship of a 
particular height -- relative to other houses of worship in town.) If it 
violates the Establishment Clause, it is only because the Establishment 
Clause is being interpreted to subsume the equal protection clause's 
anti-discrimination principles.

Alan Brownstein
UC Davis


At 02:21 PM 2/25/2004 -0500, you wrote:
content-class: urn:content-classes:message
Content-Type: multipart/alternative;
boundary="_=_NextPart_001_01C3FBD4.8FEADE9C"
I'm inclined to think that the answer to Marty's question is - or should 
be - that if the Religion Clauses (and free speech principles) are not 
offended by a religious classification, then the Equal Protection Clause 
should not be offended either, because any equal protection argument is 
simply piggy-backing on the constitutional policies of the Religion 
Clauses (and/or free speech principles).   On this view, a religious 
classification is - or should be - constitutionally suspect if, but only 
it, it (presumptively) violates the principles and values of the First 
Amendment.  Right?

Dan Conkle
**
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**
-Original Message-
From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman
Sent: Wednesday, February 25, 2004 1:58 PM
To: Law & Religion issues for Law Academics
Subject: Re: Locke v. Davey -- the Equal Protection Question

Very minor question about a potentially important footnote point in 
Davey.  The Court holds in footnote 3 that where the Free Exercise Clause 
is not violated, religious discrimination is subject only to 
rational-basis scrutiny under the Equal Protection Clause -- citing 
Johnson v. Robison, which suggested the same thing.  Is this correct?  Is 
there a theory of the 14th Amendment that would suggest otherwise?

The Court has often indicated that religious discrimination is subject to 
strict scrutiny under the EPC -- without ever, as far as I know, issuing a 
holding that depended on such a conclusion.  But cf. Fowler, 345 U.S. at 
527-28 (Frankfurter, J., concurring).  Of course, many of us have been 
wary of this equal protection argument because to take it seriously would 
be to call into question religious accommodations.  But assume for the 
moment that religious discrimination is generally subject to strict 
scrutiny under the EPC.  If so, is there any good reason why the scrutiny 
should diminish in the absence of a Free Exercise violation?  In other 
words, should there ever be a case in which the Equal Protection Clause 
prohibits a form of religious discrimination that the FEC permits?

- Original Message -
From: Marty Lederman
To: Law & Religion issues for Law 
Academics
Sent: Wednesday, February 25, 2004 10:28 AM
Subject: Re: Locke v. Davey

Here's the 
opinion: 
http://supct.law.cornell.edu:8080/supct/html/02-1315.ZS.html

- Original Message -
From: Marty Lederman
To: Law & Religion issues for Law 
Academics
Sent: Wednesday, February 25, 2004 10:22 AM
Subject: Re: Locke v. Davey

7-2, with dissents from Scalia and Thomas
- Original Message -
From: Marty Lederman
To: Law & Religion issues for Law 
Academics
Sent: Wednesday, February 25, 2004 10:18 AM
Subject: Locke v. Davey

Ninth Circuit reversed, in an opinion by the Chief!  Details to follow.

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RE: Locke v. Davey

[Conkle, Daniel O.]

[I sent the following message to the list 2 hours ago, in response to
Stuart Buck's message, but my message never appeared, leading me to
conclude that it might be lost in cyberspace.  My apologies for any
duplicate posting, especially since Marty's intervening message made a
point very similar to mine.]

I think a lot - and perhaps too much - work is being done by footnote 4
of the Court's opinion, which is attached to the Court's claim that the
scholarship condition "does not require students to choose between their
religious beliefs and receiving a government benefit."

Footnote 4 reads as follows:  "Promise Scholars may still use their
scholarship to pursue a secular degree at a different institution from
where they are studying devotional theology."

Something of a thin reed, perhaps, but it appears that this point
permits the Court to conclude that this is not an unconstitutional
condition and that Sherbert is distinguishable on this basis.  

Dan Conkle
**
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**



-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Stuart BUCK
Sent: Wednesday, February 25, 2004 1:40 PM
To: [EMAIL PROTECTED]
Subject: Re: Locke v. Davey


The central portion of the opinion is also the weakest:

QUOTE: We reject his claim of presumptive unconstitutionality, however;
to 
do otherwise would extend the Lukumi line of cases well beyond not only 
their facts but their reasoning. In Lukumi, the city of Hialeah made it
a 
crime to engage in certain kinds of animal slaughter. We found that the
law 
sought to suppress ritualistic animal sacrifices of the Santeria
religion. 
508 U.S., at 535. In the present case, the State's disfavor of religion
(if 
it can be called that) is of a far milder kind. It imposes neither
criminal 
nor civil sanctions on any type of religious service or rite. It does
not 
deny to ministers the right to participate in the political affairs of
the 
community. See McDaniel v. Paty, 435 U.S. 618 (1978). And it does not 
require students to choose between their religious beliefs and receiving
a 
government benefit.4 See ibid.; Hobbie v. Unemployment Appeals Comm'n of

Fla., 480 U.S. 136 (1987); Thomas v. Review Bd. of Indiana Employment 
Security Div., 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398
(1963). 
The State has merely chosen not to fund a distinct category of
instruction.



The program does not require students to "choose between their religious

beliefs and receiving a government benefit"?  Huh?  What if someone
thinks 
that his religious beliefs require him to study theology? It's not so 
far-fetched a possibility, after all, that someone's religious beliefs
might 
have something to do with theology.  But if he follows that particular 
religious belief, he is suddenly ineligible for the scholarship program
that 
is available to everyone else for every other course of study.  Assuming

that the Court is not going to inquire in the genuineness or sincerity
of 
the plaintiff's religious belief, the case is identical to Sherbert,
which 
the Court apparently still purports not to have overruled.

In fact, the *very next paragraph* of the opinion immediately reverses 
course, hinting that it would be problematic to fund theology study 
precisely *because* such a course of study arises from religious belief:

QUOTE: Training someone to lead a congregation is an essentially
religious 
endeavor. Indeed, majoring in devotional theology is akin to a religious

calling as well as an academic pursuit. See Calvary Bible Presbyterian 
Church v. Board of Regents, 72 Wash. 2d 912, 919, 436 P.2d 189, 193
(1967) 
(holding public funds may not be expended for "that category of
instruction 
that resembles worship and manifests a devotion to religion and
religious 
principles in thought, feeling, belief, and conduct"); App. 40 (Davey 
stating his "religious beliefs [were] the only reason for [him] to seek
a 
college degree").


I don't see how those two paragraphs can be squared with each other.  If
a 
theological course of study is "akin to a religious calling" for
purposes of 
whether the state give a nod to Establishment Clause concerns, then it
is 
also "akin to a religious calling" for purposes of whether the state can

deny a generally-available benefit.

Best,
Stuart Buck

>From: "Marty Lederman" <[EMAIL PROTECTED]>
>Reply-To: Law & Religion issues for Law Academics 
><[EMAIL PROTECTED]>
>To: "Law & Religion issues for Law Academics"
<[EMAIL PROTECTED]>
>Subject: Re: Locke v. Davey
>Date: Wed, 25 Feb 2004 10:28:06 -0500
>
>Here's the opinion:  
>http://supct.law.cornell.edu:8080/supct/html/02-1315.ZS.html
>
>
>   - Original Message -
>   From: Marty Lederman
>   To: Law & Religion issues for Law Academics
>   Sent: Wednesday, February 2

RE: ACLU V. City of Plattsmouth (8th Cir.2004)

[AJCONGRESS]

In this Ten Commandments case, a majority found a religious purpose in the
city's acceptance of a Ten Commandments plaque from the Order of Eagles. The
Court attributed the Eagles religious purpose to the city (there being no
extant evidence of the city's purpose).The dissenting judge objected to
tacking the donors purpose-to the city.
My question is: is this a dispute about constitutional law or a dispute
about the law of evidence

Marc Stern

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RE: Locke v. Davey -- the Equal Protection Question

[Newsom Michael]

Title: Message









I would amend Professor Conkle’s proposition: 
“a religious classification is – or should be –
constitutionally suspect if, but only if it (presumptively) violates the
principles and values of the Religion Clauses.”  Conflating the First Amendment clauses is
difficult to defend, given the text of the Amendment.

 

-Original Message-
From: Conkle, Daniel O.
[mailto:[EMAIL PROTECTED] 
Sent: Wednesday, February 25, 2004
2:21 PM
To: Law & Religion issues for
Law Academics
Subject: RE: Locke v. Davey -- the
Equal Protection Question

 



I'm inclined to think
that the answer to Marty's question is - or should be - that if the
Religion Clauses (and free speech principles) are not offended by a religious
classification, then the Equal Protection Clause should not be offended
either, because any equal protection argument is simply piggy-backing on the
constitutional policies of the Religion Clauses (and/or free speech
principles).   On this view, a religious classification is - or
should be - constitutionally suspect if, but only it, it (presumptively)
violates the principles and values of the First Amendment.  Right?





 





Dan Conkle 
** 
Daniel O. Conkle 
Professor of Law 
Indiana University School of Law 
Bloomington, Indiana  47405 
(812) 855-4331 
fax (812) 855-0555 
e-mail [EMAIL PROTECTED] 
** 





 








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RE: Locke v. Davey

[Newsom Michael]

I think that the key to the case is the remark that "the subject of
religion is one in which both the United States and state constitutions
embody distinct views -- in favor of free exercise, but opposed to
establishment -- that find no counterpart with respect to other callings
or professions."  Also important is the later remark that "religious
instruction is of a different ilk."  Maybe our jurisprudence can get
back to an understanding of the Religion Clauses as something more than
mere adjuncts to free speech or some nebulous anti-discrimination
principle.

I am still I shock that Rehnquist authored the quoted words above, and
that Kennedy concurred.  

-Original Message-
From: Stuart BUCK [mailto:[EMAIL PROTECTED] 
Sent: Wednesday, February 25, 2004 1:40 PM
To: [EMAIL PROTECTED]
Subject: Re: Locke v. Davey

The central portion of the opinion is also the weakest:

QUOTE: We reject his claim of presumptive unconstitutionality, however;
to 
do otherwise would extend the Lukumi line of cases well beyond not only 
their facts but their reasoning. In Lukumi, the city of Hialeah made it
a 
crime to engage in certain kinds of animal slaughter. We found that the
law 
sought to suppress ritualistic animal sacrifices of the Santeria
religion. 
508 U.S., at 535. In the present case, the State's disfavor of religion
(if 
it can be called that) is of a far milder kind. It imposes neither
criminal 
nor civil sanctions on any type of religious service or rite. It does
not 
deny to ministers the right to participate in the political affairs of
the 
community. See McDaniel v. Paty, 435 U.S. 618 (1978). And it does not 
require students to choose between their religious beliefs and receiving
a 
government benefit.4 See ibid.; Hobbie v. Unemployment Appeals Comm'n of

Fla., 480 U.S. 136 (1987); Thomas v. Review Bd. of Indiana Employment 
Security Div., 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398
(1963). 
The State has merely chosen not to fund a distinct category of
instruction.



The program does not require students to "choose between their religious

beliefs and receiving a government benefit"?  Huh?  What if someone
thinks 
that his religious beliefs require him to study theology? It's not so 
far-fetched a possibility, after all, that someone's religious beliefs
might 
have something to do with theology.  But if he follows that particular 
religious belief, he is suddenly ineligible for the scholarship program
that 
is available to everyone else for every other course of study.  Assuming

that the Court is not going to inquire in the genuineness or sincerity
of 
the plaintiff's religious belief, the case is identical to Sherbert,
which 
the Court apparently still purports not to have overruled.

In fact, the *very next paragraph* of the opinion immediately reverses 
course, hinting that it would be problematic to fund theology study 
precisely *because* such a course of study arises from religious belief:

QUOTE: Training someone to lead a congregation is an essentially
religious 
endeavor. Indeed, majoring in devotional theology is akin to a religious

calling as well as an academic pursuit. See Calvary Bible Presbyterian 
Church v. Board of Regents, 72 Wash. 2d 912, 919, 436 P.2d 189, 193
(1967) 
(holding public funds may not be expended for "that category of
instruction 
that resembles worship and manifests a devotion to religion and
religious 
principles in thought, feeling, belief, and conduct"); App. 40 (Davey 
stating his "religious beliefs [were] the only reason for [him] to seek
a 
college degree").


I don't see how those two paragraphs can be squared with each other.  If
a 
theological course of study is "akin to a religious calling" for
purposes of 
whether the state give a nod to Establishment Clause concerns, then it
is 
also "akin to a religious calling" for purposes of whether the state can

deny a generally-available benefit.

Best,
Stuart Buck


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RE: Locke v. Davey -- the Equal Protection Question

[Conkle, Daniel O.]

Title: Message



I'm inclined 
to think that the answer to Marty's question is - or should be - that if 
the Religion Clauses (and free speech principles) are not offended by a 
religious classification, then the Equal Protection Clause should not be 
offended either, because any equal protection argument is simply piggy-backing 
on the constitutional policies of the Religion Clauses (and/or free speech 
principles).   On this view, a religious classification is - or should 
be - constitutionally suspect if, but only it, it (presumptively) violates the 
principles and values of the First Amendment.  Right?
 
Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law 
Bloomington, Indiana  
47405 (812) 
855-4331 fax (812) 
855-0555 e-mail 
[EMAIL PROTECTED] ** 


  
  -Original Message-From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Marty LedermanSent: Wednesday, February 25, 
  2004 1:58 PMTo: Law & Religion issues for Law 
  AcademicsSubject: Re: Locke v. Davey -- the Equal Protection 
  Question
  Very minor question about a potentially important 
  footnote point in Davey.  The Court holds in footnote 3 that 
  where the Free Exercise Clause is not violated, religious discrimination is 
  subject only to rational-basis scrutiny under the Equal Protection Clause -- 
  citing Johnson v. Robison, which suggested the same thing.  Is 
  this correct?  Is there a theory of the 14th Amendment that would suggest 
  otherwise?
   
  The Court has often indicated that religious 
  discrimination is subject to strict scrutiny under the EPC -- without ever, as 
  far as I know, issuing a holding that depended on such a conclusion.  
  But cf. Fowler, 345 U.S. at 527-28 (Frankfurter, J., 
  concurring).  Of course, many of us have been wary of this equal 
  protection argument because to take it seriously would be to call into 
  question religious accommodations.  But assume for the moment that 
  religious discrimination is generally subject to strict scrutiny 
  under the EPC.  If so, is there any good reason why the scrutiny should 
  diminish in the absence of a Free Exercise violation?  In other words, 
  should there ever be a case in which the Equal Protection Clause prohibits a 
  form of religious discrimination that the FEC permits?
   
   
  
- Original Message - 
From: 
Marty Lederman 
To: Law & Religion issues for Law 
Academics 
Sent: Wednesday, February 25, 2004 
10:28 AM
Subject: Re: Locke v. Davey

Here's the opinion:  http://supct.law.cornell.edu:8080/supct/html/02-1315.ZS.html
 
 

  - Original Message - 
  From: 
  Marty Lederman 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Wednesday, February 25, 2004 
  10:22 AM
  Subject: Re: Locke v. Davey
  
  7-2, with dissents from Scalia and 
  Thomas
  
- Original Message - 
From: 
Marty Lederman 
To: Law & Religion issues for 
Law Academics 
Sent: Wednesday, February 25, 2004 
10:18 AM
Subject: Locke v. Davey

Ninth Circuit reversed, in an opinion by 
the Chief!  Details to follow.



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Re: Locke v. Davey

[Marty Lederman]

I think you're overreading the Chief's sentence 
about how the program "does not 
require students to choose between their religious beliefs and 
receiving a government benefit."  The entire rest of the opinion -- i.e., 
all of the opinion except for that sentence and the 
appended footnote -- examines the question whether Washington can decline to 
subsidize a student's study for the ministry.  But in that 
sentence and footnote, the Court is simply responding to Davey's distinct 
 unconstitutional conditions argument, i.e., the argument that 
Washington not only declines to fund Davey's divinity studies, it also 
refuses to give him a scholarship even if he pays for the devotional classes 
with his own funds.  That is to say, Davey argued that Washington 
not only refused to subsidize, but also punished his decision to major 
in theology, by telling him that if he continued to have that major, he could 
not use the scholarship even for secular study.  As I wrote after 
the oral argument, http://www.goldsteinhowe.com/blog/archive/2003_11_30_SCOTUSblog.cfm#107047764969795258, 
this unconstitutional conditions argument appeared to appeal to Kennedy, 
especially as a way the Court could avoid the broader question of the 
constitutionality of the state's refusal to fund the religious studies 
themselves.
 
The Chief responded to this argument precisely as 
he did in Rust v. Sullivan, 500 U.S. at 197-99 -- namely, by saying 
that Davey could have his cake and eat it too, if he simply used the scholarship 
to pursue a secular degree at a different institution.  See 
footnote 4.  To put it in your terms, Rehnquist reasoned that if Davey 
"follows that particular religious belief" [studying divinity], he is 
not "suddenly ineligible for the scholarship program 
that is available to everyone else for every other course of study."  
He can still receive the scholarship and apply it to a secular course of study 
elsewhere, even if he continues to major in theology at Northwest College.  
This distinguishes the case from, e.g., McDaniel v. Paty, in which 
ministers were entirely exlcuded from service in the legislature --they couldn't 
be legislators using "their own funds."  
 
Now, the natural response to this is to say that 
the option left open to Davey is ridiculously formalistic -- what needy student, 
after all, would actually attend two schools just so as to be able to use the 
scholarship at one?  I agree with this objection -- which is why I think 
the unconstitutional conditions problem is much more serious than the Court lets 
on.  But the Chief's resolution of this problem is actually the same as his 
resolution in Rust, in which he rejected the unconstitutional 
conditions argument on the ground that the organization could set up a wholly 
independent, strictly segregated, unfunded clinic in which it could provide 
abortion advice.  
 
 
- Original Message - 
From: "Stuart BUCK" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Wednesday, February 25, 2004 1:40 
PM
Subject: Re: Locke v. Davey
> The central portion of the opinion is also the weakest:> 
> QUOTE: We reject his claim of presumptive unconstitutionality, however; 
to > do otherwise would extend the Lukumi line of cases well beyond not 
only > their facts but their reasoning. In Lukumi, the city of Hialeah 
made it a > crime to engage in certain kinds of animal slaughter. We 
found that the law > sought to suppress ritualistic animal sacrifices of 
the Santeria religion. > 508 U.S., at 535. In the present case, the 
State's disfavor of religion (if > it can be called that) is of a far 
milder kind. It imposes neither criminal > nor civil sanctions on any 
type of religious service or rite. It does not > deny to ministers the 
right to participate in the political affairs of the > community. See 
McDaniel v. Paty, 435 U.S. 618 (1978). And it does not > require students 
to choose between their religious beliefs and receiving a > government 
benefit.4 See ibid.; Hobbie v. Unemployment Appeals Comm'n of > Fla., 480 
U.S. 136 (1987); Thomas v. Review Bd. of Indiana Employment > Security 
Div., 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398 (1963). > The 
State has merely chosen not to fund a distinct category of instruction.> 
> > > The program does not require students to "choose 
between their religious > beliefs and receiving a government 
benefit"?  Huh?  What if someone thinks > that his religious 
beliefs require him to study theology? It's not so > far-fetched a 
possibility, after all, that someone's religious beliefs might > have 
something to do with theology.  But if he follows that particular > 
religious belief, he is suddenly ineligible for the scholarship program that 
> is available to everyone else for every other course of study.  
Assuming > that the Court is not going to inquire in the genuineness or 
sincerity of > the plaintiff's religious belief, the case is identical to 
Sherbert, which > the Court apparen

RE: Locke v. Davey

[Conkle, Daniel O.]

I think a lot - and perhaps too much - work is being done by footnote 4
of the Court's opinion, which is attached to the Court's claim that the
scholarship condition "does not require students to choose between their
religious beliefs and receiving a government benefit."

Footnote 4 reads as follows:  "Promise Scholars may still use their
scholarship to pursue a secular degree at a different institution from
where they are studying devotional theology."

Something of a thin reed, perhaps, but it appears that this point
permits the Court to conclude that this is not an unconstitutional
condition and that Sherbert is distinguishable on this basis.  

Dan Conkle
**
Daniel O. Conkle
Professor of Law
Indiana University School of Law
Bloomington, Indiana  47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
**



-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Stuart BUCK
Sent: Wednesday, February 25, 2004 1:40 PM
To: [EMAIL PROTECTED]
Subject: Re: Locke v. Davey


The central portion of the opinion is also the weakest:

QUOTE: We reject his claim of presumptive unconstitutionality, however;
to 
do otherwise would extend the Lukumi line of cases well beyond not only 
their facts but their reasoning. In Lukumi, the city of Hialeah made it
a 
crime to engage in certain kinds of animal slaughter. We found that the
law 
sought to suppress ritualistic animal sacrifices of the Santeria
religion. 
508 U.S., at 535. In the present case, the State's disfavor of religion
(if 
it can be called that) is of a far milder kind. It imposes neither
criminal 
nor civil sanctions on any type of religious service or rite. It does
not 
deny to ministers the right to participate in the political affairs of
the 
community. See McDaniel v. Paty, 435 U.S. 618 (1978). And it does not 
require students to choose between their religious beliefs and receiving
a 
government benefit.4 See ibid.; Hobbie v. Unemployment Appeals Comm'n of

Fla., 480 U.S. 136 (1987); Thomas v. Review Bd. of Indiana Employment 
Security Div., 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398
(1963). 
The State has merely chosen not to fund a distinct category of
instruction.



The program does not require students to "choose between their religious

beliefs and receiving a government benefit"?  Huh?  What if someone
thinks 
that his religious beliefs require him to study theology? It's not so 
far-fetched a possibility, after all, that someone's religious beliefs
might 
have something to do with theology.  But if he follows that particular 
religious belief, he is suddenly ineligible for the scholarship program
that 
is available to everyone else for every other course of study.  Assuming

that the Court is not going to inquire in the genuineness or sincerity
of 
the plaintiff's religious belief, the case is identical to Sherbert,
which 
the Court apparently still purports not to have overruled.

In fact, the *very next paragraph* of the opinion immediately reverses 
course, hinting that it would be problematic to fund theology study 
precisely *because* such a course of study arises from religious belief:

QUOTE: Training someone to lead a congregation is an essentially
religious 
endeavor. Indeed, majoring in devotional theology is akin to a religious

calling as well as an academic pursuit. See Calvary Bible Presbyterian 
Church v. Board of Regents, 72 Wash. 2d 912, 919, 436 P.2d 189, 193
(1967) 
(holding public funds may not be expended for "that category of
instruction 
that resembles worship and manifests a devotion to religion and
religious 
principles in thought, feeling, belief, and conduct"); App. 40 (Davey 
stating his "religious beliefs [were] the only reason for [him] to seek
a 
college degree").


I don't see how those two paragraphs can be squared with each other.  If
a 
theological course of study is "akin to a religious calling" for
purposes of 
whether the state give a nod to Establishment Clause concerns, then it
is 
also "akin to a religious calling" for purposes of whether the state can

deny a generally-available benefit.

Best,
Stuart Buck

>From: "Marty Lederman" <[EMAIL PROTECTED]>
>Reply-To: Law & Religion issues for Law Academics 
><[EMAIL PROTECTED]>
>To: "Law & Religion issues for Law Academics"
<[EMAIL PROTECTED]>
>Subject: Re: Locke v. Davey
>Date: Wed, 25 Feb 2004 10:28:06 -0500
>
>Here's the opinion:  
>http://supct.law.cornell.edu:8080/supct/html/02-1315.ZS.html
>
>
>   - Original Message -
>   From: Marty Lederman
>   To: Law & Religion issues for Law Academics
>   Sent: Wednesday, February 25, 2004 10:22 AM
>   Subject: Re: Locke v. Davey
>
>
>   7-2, with dissents from Scalia and Thomas
> - Original Message -
> From: Marty Lederman
> To: Law & Religion issues for Law Academics
> Sent: Wednesday, February 25, 2004 10:18 AM
> Subject: Locke v. Davey
>
>
> Ninth 

Re: Locke v. Davey -- the Equal Protection Question

[Marty Lederman]

Very minor question about a potentially important 
footnote point in Davey.  The Court holds in footnote 3 that where 
the Free Exercise Clause is not violated, religious discrimination is subject 
only to rational-basis scrutiny under the Equal Protection Clause -- citing 
Johnson v. Robison, which suggested the same thing.  Is this 
correct?  Is there a theory of the 14th Amendment that would suggest 
otherwise?
 
The Court has often indicated that religious 
discrimination is subject to strict scrutiny under the EPC -- without ever, as 
far as I know, issuing a holding that depended on such a conclusion.  
But cf. Fowler, 345 U.S. at 527-28 (Frankfurter, J., concurring).  
Of course, many of us have been wary of this equal protection argument because 
to take it seriously would be to call into question religious 
accommodations.  But assume for the moment that religious discrimination 
is generally subject to strict scrutiny under the EPC.  If so, is 
there any good reason why the scrutiny should diminish in the absence of a Free 
Exercise violation?  In other words, should there ever be a case in which 
the Equal Protection Clause prohibits a form of religious discrimination that 
the FEC permits?
 
 

  - Original Message - 
  From: 
  Marty Lederman 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Wednesday, February 25, 2004 10:28 
  AM
  Subject: Re: Locke v. Davey
  
  Here's the opinion:  http://supct.law.cornell.edu:8080/supct/html/02-1315.ZS.html
   
   
  
- Original Message - 
From: 
Marty Lederman 
To: Law & Religion issues for Law 
Academics 
Sent: Wednesday, February 25, 2004 
10:22 AM
Subject: Re: Locke v. Davey

7-2, with dissents from Scalia and 
Thomas

  - Original Message - 
  From: 
  Marty Lederman 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Wednesday, February 25, 2004 
  10:18 AM
  Subject: Locke v. Davey
  
  Ninth Circuit reversed, in an opinion by the 
  Chief!  Details to follow.
  
  

  ___To post, send 
  message to [EMAIL PROTECTED]To 
  subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw



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Re: Locke v. Davey

[Stuart BUCK]

The central portion of the opinion is also the weakest:

QUOTE: We reject his claim of presumptive unconstitutionality, however; to 
do otherwise would extend the Lukumi line of cases well beyond not only 
their facts but their reasoning. In Lukumi, the city of Hialeah made it a 
crime to engage in certain kinds of animal slaughter. We found that the law 
sought to suppress ritualistic animal sacrifices of the Santeria religion. 
508 U.S., at 535. In the present case, the State’s disfavor of religion (if 
it can be called that) is of a far milder kind. It imposes neither criminal 
nor civil sanctions on any type of religious service or rite. It does not 
deny to ministers the right to participate in the political affairs of the 
community. See McDaniel v. Paty, 435 U.S. 618 (1978). And it does not 
require students to choose between their religious beliefs and receiving a 
government benefit.4 See ibid.; Hobbie v. Unemployment Appeals Comm’n of 
Fla., 480 U.S. 136 (1987); Thomas v. Review Bd. of Indiana Employment 
Security Div., 450 U.S. 707 (1981); Sherbert v. Verner, 374 U.S. 398 (1963). 
The State has merely chosen not to fund a distinct category of instruction.



The program does not require students to "choose between their religious 
beliefs and receiving a government benefit"?  Huh?  What if someone thinks 
that his religious beliefs require him to study theology? It's not so 
far-fetched a possibility, after all, that someone's religious beliefs might 
have something to do with theology.  But if he follows that particular 
religious belief, he is suddenly ineligible for the scholarship program that 
is available to everyone else for every other course of study.  Assuming 
that the Court is not going to inquire in the genuineness or sincerity of 
the plaintiff's religious belief, the case is identical to Sherbert, which 
the Court apparently still purports not to have overruled.

In fact, the *very next paragraph* of the opinion immediately reverses 
course, hinting that it would be problematic to fund theology study 
precisely *because* such a course of study arises from religious belief:

QUOTE: Training someone to lead a congregation is an essentially religious 
endeavor. Indeed, majoring in devotional theology is akin to a religious 
calling as well as an academic pursuit. See Calvary Bible Presbyterian 
Church v. Board of Regents, 72 Wash. 2d 912, 919, 436 P.2d 189, 193 (1967) 
(holding public funds may not be expended for “that category of instruction 
that resembles worship and manifests a devotion to religion and religious 
principles in thought, feeling, belief, and conduct”); App. 40 (Davey 
stating his “religious beliefs [were] the only reason for [him] to seek a 
college degree”).

I don't see how those two paragraphs can be squared with each other.  If a 
theological course of study is "akin to a religious calling" for purposes of 
whether the state give a nod to Establishment Clause concerns, then it is 
also "akin to a religious calling" for purposes of whether the state can 
deny a generally-available benefit.

Best,
Stuart Buck
From: "Marty Lederman" <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics 
<[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" <[EMAIL PROTECTED]>
Subject: Re: Locke v. Davey
Date: Wed, 25 Feb 2004 10:28:06 -0500

Here's the opinion:  
http://supct.law.cornell.edu:8080/supct/html/02-1315.ZS.html

  - Original Message -
  From: Marty Lederman
  To: Law & Religion issues for Law Academics
  Sent: Wednesday, February 25, 2004 10:22 AM
  Subject: Re: Locke v. Davey
  7-2, with dissents from Scalia and Thomas
- Original Message -
From: Marty Lederman
To: Law & Religion issues for Law Academics
Sent: Wednesday, February 25, 2004 10:18 AM
Subject: Locke v. Davey
Ninth Circuit reversed, in an opinion by the Chief!  Details to 
follow.



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Re: Locke v. Davey

[Marty Lederman]

Here's the opinion:  http://supct.law.cornell.edu:8080/supct/html/02-1315.ZS.html
 
 

  - Original Message - 
  From: 
  Marty Lederman 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Wednesday, February 25, 2004 10:22 
  AM
  Subject: Re: Locke v. Davey
  
  7-2, with dissents from Scalia and 
  Thomas
  
- Original Message - 
From: 
Marty Lederman 
To: Law & Religion issues for Law 
Academics 
Sent: Wednesday, February 25, 2004 
10:18 AM
Subject: Locke v. Davey

Ninth Circuit reversed, in an opinion by the 
Chief!  Details to follow.



___To post, send 
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Re: Locke v. Davey

[Marty Lederman]

7-2, with dissents from Scalia and 
Thomas

  - Original Message - 
  From: 
  Marty Lederman 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Wednesday, February 25, 2004 10:18 
  AM
  Subject: Locke v. Davey
  
  Ninth Circuit reversed, in an opinion by the 
  Chief!  Details to follow.
  
  

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Locke v. Davey

[Marty Lederman]

Ninth Circuit reversed, in an opinion by the 
Chief!  Details to follow.
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