Apologies Re: Fw: DC bar event

[ArtSpitzer]

In a message dated 5/27/04 11:14:24 PM, [EMAIL PROTECTED] writes:

Just got this from the listserv, and thought you'd want to know that's where it went.  :-)



My apologies.   I have no idea how I hit "reply" and sent a message to this list!
Art Spitzer
___
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

Re: DC bar event

[ArtSpitzer]

In a message dated 5/27/04 5:51:25 PM, [EMAIL PROTECTED] writes:


Have you picked a date? Did I miss something? Thanks


Monday July 12, lunchtime.   SORRY I forgot to convey that!   Are you still available?
Art
___
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

Re: Tax On Theology Majors

[Steven Jamar]

On Thursday, May 27, 2004, at 10:49  AM, Rick Duncan wrote:
I think the point is that from an economic
perspective, there is little or no difference between
a targeted $1,000 tax and a targeted exclusion from a
generally available $1,000 benefit.
One difference in practice would be that all the targets get hit with 
the tax whereas only a few would take advantage of the benefit.

Another is forcing someone to do something (pay tax) versus allowing 
someone to choose something.

There are real differences both economic and otherwise.
--
Prof. Steven D. Jamar   vox:  202-806-8017
Howard University School of Law fax:  202-806-8567
2900 Van Ness Street NW   mailto:[EMAIL PROTECTED]
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/
"It is by education I learn to do by choice, what other men do by the 
constraint of fear."

Aristotle
___
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

Re: DC bar event

[Tony Mauro]

Art,

Have you picked a date? Did I miss something? Thanks
-- 
Tony Mauro
Supreme Court Correspondent
Legal Times/ American Lawyer Media
1730 M St., Suite 802,
Washington, DC 20036

Phone: 202-828-0327
Fax: 202-457-0718


___
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

Re: Tax On Theology Majors

[lweinberg]

I guess there is a difference between the questions whether
a state may target religion by imposing a tax on it and whether a state
may avoid taxing others to pay for religion.
Louise Weinberg
[EMAIL PROTECTED]

At 09:49 AM 5/27/04, Rick wrote:
If it is pure rational basis, I
guess the legitimate
interest might be in raising revenue. The law is
generally very deferential toward classifications
concerning tax policy, even toward classifications
that appear irrational(just look at the IRC for an
infinity of examples).
I think the point is that from an economic
perspective, there is little or no difference between
a targeted $1,000 tax and a targeted exclusion from a
generally available $1,000 benefit. The Court has
specifically made this point on many occasions
including, I believe, in Sherbert.
If the latter is a trivial burden on Free Ex, so also
is the former.
I am sure the Court would strike down the targeted tax
as a violation of the core of Smith, but it is
difficult to square this result with Locke. Unless
Locke is, as I think it is, a narrow decision carving
out a special rule allowing states to exclude
clergy-in-training from generally available funding
programs.
Rick


=
Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
"When the Round Table is broken every man must follow either Galahad
or Mordred: middle things are gone." C.S.Lewis, Grand
Miracle
"I will not be pushed, filed, stamped, indexed, briefed, debriefed,
or numbered."  --The Prisoner



__
Do you Yahoo!?
Friends.  Fun.  Try the all-new Yahoo! Messenger.
http://messenger.yahoo.com/

___
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
___
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

Re: Tax On Theology Majors

[A.E. Brownstein]

I was going to respond to Doug along these lines - but Marty beat me to it 
and wrote a lot better post than I would have.

Alan Brownstein
UC Davis

At 03:13 PM 5/27/2004 -0400, you wrote:
I agree with Doug that, as a practical matter, the denial of the 
scholarship operated as a penalty on Davey's choice of majoring in 
theology -- what we would ordinarily think of as an unconstitutional 
condition:  Davey's religious choice realistically prevented him from 
using the $$ even to pay for non-theology courses, such as courses taken 
in pursuit of his business major.  Indeed, as you know, I had written 
before the decision that that was the obvious narrow ground on which the 
Court could, and likely would, decide the case in favor of Davey, avoiding 
the need to opine on whether the state could decline to subsidize the 
religious study itself.

Obviously, the Court did not rule that way.  But as a doctrinal matter, 
the case can't really be read as supporting the power of the state to 
impose a penalty on religious exercise, owing to the truly weird and 
conclusory statement and footnote that the state "does not require 
students to choose between their religious beliefs and receiving a 
government benefit," because "Promise Scholars may still use their 
scholarship to pursue a secular degree at a different institution from 
where they are studying devotional theology."  This is not a new 
concept:  It derives from the "separate affiliate" doctrine of Regan and 
League of Women Voters, which came to fruition in Rust v. 
Sullivan.  Recall that in Rust, Rehnquist similarly (but in less 
conclusory fashion) turned aside an unconstitutional-conditions argument 
by explaining that recipient clinics remained free to engage in 
abortion-related counseling by way of a "physically and financially 
separate" entity having "objective integrity and independence" from the 
funded clinic, with separate accounting records and separate personnel, 
and a degree of physical separation, as well.  Of course, this option was 
as a practical matter as unrealistic for the recipient clinics in Rust as 
was the option for Davey to attend two undergraduate 
institutions.  Nevertheless, the idea in both cases is (as the Court put 
it last week in Sabri) that "money is fungible," and that therefore the 
state can require a very severe degree of segregation and independence to 
ensure that its funds do not support the disfavored activity.

I tend to think that this doctrine ought to be a bit more sensitive to the 
realistic burdens of "segregation," and to the fact that such requirements 
often impose -- in practical effect -- a penalty on protected 
conduct.  But it's very difficult to know quite where to draw the 
line.  Moreover, this same "fungibility" argument is what underlies the 
requirement in title VI, title IX, the Rehab Act and RLUIPA that a 
governmental funding recipient -- defined at the state level as an entire 
state agency -- not engage in the prohibited activity (e.g., sex 
discrimination; unnecessary burdening of religious exercise) in all of its 
operations if it receives a single federal dollar in support of any of its 
activities.  See pages 13-18 of the SG's BIO in Jim C. (a Rehab Act case), 
which suggest the affinity between the Rust separate-affiliate rule and 
the post-Grove City "operations of the program or activity" conditions in 
the Rehab Act, et al.

- Original Message -
From: "Douglas Laycock" 
<[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" 
<[EMAIL PROTECTED]>
Sent: Thursday, May 27, 2004 2:36 PM
Subject: Re: Tax On Theology Majors

> Alan Brownstein wrote:
>
>  > For the same reason in Locke, if the student majors in theology at a
> college he pays for with his own funds, he can not be denied > a
> scholarship for his other studies.
>
>  Well, actually, he could be and he was.  If he declared a 
major in
> Theology, he lost the scholarship entirely; he could not use it for 
general
> ed requirements or secular electives, or for his other major in Business
> Administration.  Rehnquist ducked that by saying he could have used a
> scholarship to major in Business Admin at another school.  But that is so
> impractical, and double majors such a small fraction of students, that I
> have trouble viewing that point as anything more than a makeweight.
>
>  One of the more bizarre things about Locke is that he could have
> had his scholarship, and taken every course he took, including all the
> theology courses, if he had simply declared a single major in Business
> Admin and taken the theology courses as electives without declaring a
> second major.  Maybe that's just the kind of weird individual case that
> happens when the law relies on a general category or rule of thumb, but at
> least in Locke's case, denial of the scholarship operated as a penalty for
> declaring a theology major.
>
>
>
>
>
> Douglas Laycock

Re: Tax On Theology Majors

[Marty Lederman]

I agree with Doug that, as a practical 
matter, the denial of the scholarship operated as a penalty on Davey's choice of 
majoring in theology -- what we would ordinarily think of as an unconstitutional 
condition:  Davey's religious choice realistically prevented him from using 
the $$ even to pay for non-theology courses, such as courses taken in 
pursuit of his business major.  Indeed, as you know, I had written before 
the decision that that was the obvious narrow ground on which the Court could, 
and likely would, decide the case in favor of Davey, avoiding the need to opine 
on whether the state could decline to subsidize the religious study 
itself.
 
Obviously, the Court did not rule that way.  
But as a doctrinal matter, the case can't really be read as supporting 
the power of the state to impose a penalty on religious exercise, owing to the 
truly weird and conclusory statement and footnote that the state "does not 
require students to choose between their religious beliefs and receiving a 
government benefit," because "Promise Scholars may still use their scholarship 
to pursue a secular degree at a different institution from where they 
are studying devotional theology."  This is not a new concept:  
It derives from the "separate affiliate" doctrine of Regan and 
League of Women Voters, which came to fruition in Rust v. 
Sullivan.  Recall that in Rust, Rehnquist similarly (but in 
less conclusory fashion) turned aside an unconstitutional-conditions argument by 
explaining that recipient clinics remained free to engage in 
abortion-related counseling by way of a "physically and financially 
separate" entity having "objective integrity and independence" from the funded 
clinic, with separate accounting records and separate personnel, and a degree of 
physical separation, as well.  Of course, this option was as a 
practical matter as unrealistic for the recipient clinics in Rust 
as was the option for Davey to attend two undergraduate institutions.  
Nevertheless, the idea in both cases is (as the Court put it last week in 
Sabri) that "money is fungible," and that therefore the state can 
require a very severe degree of segregation and independence to ensure that 
its funds do not support the disfavored activity. 
 
I tend to think that this doctrine ought to be 
a bit more sensitive to the realistic burdens of "segregation," and to the 
fact that such requirements often impose -- in practical effect -- a 
penalty on protected conduct.  But it's very difficult to know quite where 
to draw the line.  Moreover, this same "fungibility" argument is 
what underlies the requirement in title VI, title IX, the Rehab Act 
and RLUIPA that a governmental funding recipient 
-- defined at the state level as an entire state agency -- not engage 
in the prohibited activity (e.g., sex discrimination; unnecessary burdening of 
religious exercise) in all of its operations if it 
receives a single federal dollar in support of any of its 
activities.  See pages 13-18 of the SG's BIO in Jim C. (a 
Rehab Act case), which suggest the affinity between the Rust 
separate-affiliate rule and the post-Grove City "operations of the 
program or activity" conditions in the Rehab Act, et al.  
 
- Original Message - 

From: "Douglas Laycock" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" 
<[EMAIL PROTECTED]>
Sent: Thursday, May 27, 2004 2:36 PM
Subject: Re: Tax On Theology 
Majors
> Alan Brownstein wrote:> >  > For the same 
reason in Locke, if the student majors in theology at a > college he pays 
for with his own funds, he can not be denied > a > scholarship for his 
other studies.> >  
Well, actually, he could be and he was.  If he declared a major in > 
Theology, he lost the scholarship entirely; he could not use it for general 
> ed requirements or secular electives, or for his other major in 
Business > Administration.  Rehnquist ducked that by saying he could 
have used a > scholarship to major in Business Admin at another 
school.  But that is so > impractical, and double majors such a 
small fraction of students, that I > have trouble viewing that point as 
anything more than a makeweight.> > 
 One of the more bizarre things 
about Locke is that he could have > had his scholarship, and taken every 
course he took, including all the > theology courses, if he had simply 
declared a single major in Business > Admin and taken the theology 
courses as electives without declaring a > second major.  Maybe 
that's just the kind of weird individual case that > happens when the law 
relies on a general category or rule of thumb, but at > least in Locke's 
case, denial of the scholarship operated as a penalty for > declaring a 
theology major.> > > > > > Douglas 
Laycock> University of Texas Law School> 727 E. Dean Keeton 
St.> Austin, TX  78705> 
 512-232-1341 (voice)> 
 512-471-6988 (fax)> 
 [EMAIL PROTECTED]> 
> _

Re: Tax On Theology Majors

[Douglas Laycock]

Alan Brownstein wrote:
> For the same reason in Locke, if the student majors in theology at a 
college he pays for with his own funds, he can not be denied > a 
scholarship for his other studies.

Well, actually, he could be and he was.  If he declared a major in 
Theology, he lost the scholarship entirely; he could not use it for general 
ed requirements or secular electives, or for his other major in Business 
Administration.  Rehnquist ducked that by saying he could have used a 
scholarship to major in Business Admin at another school.  But that is so 
impractical, and double majors such a small fraction of students, that I 
have trouble viewing that point as anything more than a makeweight.

One of the more bizarre things about Locke is that he could have 
had his scholarship, and taken every course he took, including all the 
theology courses, if he had simply declared a single major in Business 
Admin and taken the theology courses as electives without declaring a 
second major.  Maybe that's just the kind of weird individual case that 
happens when the law relies on a general category or rule of thumb, but at 
least in Locke's case, denial of the scholarship operated as a penalty for 
declaring a theology major.



Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341 (voice)
512-471-6988 (fax)
[EMAIL PROTECTED]
___
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

RE: Follow up as to the baptisms in the park

[Volokh, Eugene]

1)  It seems to me that even if the prohibition evenhandedly
applies to political and religious activities -- not at all clear given
some of the other statements that seem to be more focused on religious
activities, or even religious activities except a few favored ones -- it
would still be content-based (unless "political" is shorthand for all
speech other than conversations with your friends).

2)  Can the government really ban all public speech in a
traditional public forum except for speech that's in a shelter
(presumably a relatively enclosed one) or a room?  I had thought that
the point of TPFs was that people could try to speak there to the public
at large, and not just to those people who walk in the door to their
event.  What's more, the point of the city policy seems to be precisely
to preclude such public speech -- the city doesn't seem to want speakers
"to promote their particular message to others."  (Naturally, I agree
that a content-neutral restriction on loudspeakers may be a different
story.)

Eugene



> -Original Message-
> From: [EMAIL PROTECTED] 
> [mailto:[EMAIL PROTECTED] On Behalf Of Mark Tushnet
> Sent: Thursday, May 27, 2004 11:07 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Follow up as to the baptisms in the park
> 
> 
> I don't read the manager as saying that "most public religious 
> activities" are prohibited "in the park."  As I read him, he's saying 
> that such activities are allowed, but only in the shelters 
> (as is true, 
> as I read it, of political rallies and events by private companies 
> [which I suppose might include annual corporation picnics and 
> the like, 
> but maybe this refers only to things like product release 
> parties]).  As 
> I read the statement (not embodied in a written policy, apparently), 
> "the park" is, so to speak, zoned for different activities, 
> with some, 
> including religious activities and political rallies, limited to the 
> shelters, and others allowed in the common areas (as well as the 
> shelters?).  And, if that's the correct understanding, is there 
> something impermissible about such zoning (akin to reserving 
> Hyde Park 
> Corner, but no other part of Hyde Park, for political speeches)?  
> Indeed, even if I'm misunderstanding the policy, is zoning of 
> this sort 
> within a public park constitutionally permissible?
> 
> [There's lurking here a disparate impact argument as well, of a sort 
> that affects public forum doctrine generally, because, 
> whatever might be 
> said about, e.g., celebrations of the Mass, which might be performed 
> (let me assume) in a shelter, baptisms of the sort at issue can't be.]
> 
> Volokh, Eugene wrote:
> 
> > It looks like there is a policy of prohibiting most 
> public religious 
> >activities in the park.  Wouldn't that be unconstitutional in a 
> >traditional public forum (which the park, though not the 
> river, likely 
> >is), even if there is no discrimination?  But it would also be some 
> >evidence that there does appear to be religious 
> discrimination even in 
> >the river use policy.
> >
> > Eugene
> >
> >
> >
> >http://fredericksburg.com/News/FLS/2004/052004/05272004/1377386
> >
> >. . .  Some who heard about the controversy say the rule may 
> be illegal 
> >and a form of religious discrimination.
> >
> >"You can't treat religious expression in a public park any different 
> >from any other kinds of expression," said Kent Willis, executive 
> >director of the American Civil Liberties Union of Virginia 
> in Richmond.
> >
> >Park Authority Manager Brian Robinson, who approached Pyle after 
> >Sunday's baptisms, said the agency doesn't discourage religious 
> >activities.
> >
> >He said religious services, political rallies and private companies 
> >that use the authority's four parks must confine their 
> activities to a 
> >reserved shelter or room so they do not interfere with other park 
> >patrons.
> >
> >Active church services, such as baptisms and revivals, or 
> anything that 
> >"takes on a public persona that others would take offense or object 
> >to," are not allowed in the common areas of the parks, Robinson said.
> >
> >"We don't have a problem with providing shelters, but we don't want 
> >others to feel forced to endure someone else's religion," he said.
> >
> >In addition to Falmouth Waterfront Park, the regional authority 
> >oversees St. Clair Brooks Park and Pratt Park in southern 
> Stafford and 
> >Old Mill Park in the city.
> >
> >Park officials have had situations in the past where groups came in, 
> >set up tents and loud speakers for revivals and tried to 
> promote their 
> >particular message to others, he said.
> >
> >Members of Cornerstone Baptist, who didn't inform park 
> officials before 
> >the baptisms, were passing out literature Sunday, Robinson said.
> >
> >But the policy, which is not in writing, prompted debate last night 
> >during an emergency meeting of the Park Authority bo

Re: Follow up as to the baptisms in the park

[Mark Tushnet]

I don't read the manager as saying that "most public religious 
activities" are prohibited "in the park."  As I read him, he's saying 
that such activities are allowed, but only in the shelters (as is true, 
as I read it, of political rallies and events by private companies 
[which I suppose might include annual corporation picnics and the like, 
but maybe this refers only to things like product release parties]).  As 
I read the statement (not embodied in a written policy, apparently), 
"the park" is, so to speak, zoned for different activities, with some, 
including religious activities and political rallies, limited to the 
shelters, and others allowed in the common areas (as well as the 
shelters?).  And, if that's the correct understanding, is there 
something impermissible about such zoning (akin to reserving Hyde Park 
Corner, but no other part of Hyde Park, for political speeches)?  
Indeed, even if I'm misunderstanding the policy, is zoning of this sort 
within a public park constitutionally permissible?

[There's lurking here a disparate impact argument as well, of a sort 
that affects public forum doctrine generally, because, whatever might be 
said about, e.g., celebrations of the Mass, which might be performed 
(let me assume) in a shelter, baptisms of the sort at issue can't be.]

Volokh, Eugene wrote:
It looks like there is a policy of prohibiting most public
religious activities in the park.  Wouldn't that be unconstitutional in
a traditional public forum (which the park, though not the river, likely
is), even if there is no discrimination?  But it would also be some
evidence that there does appear to be religious discrimination even in
the river use policy.
Eugene

http://fredericksburg.com/News/FLS/2004/052004/05272004/1377386
. . .  Some who heard about the controversy say the rule may be illegal
and a form of religious discrimination.
"You can't treat religious expression in a public park any different
from any other kinds of expression," said Kent Willis, executive
director of the American Civil Liberties Union of Virginia in Richmond.
Park Authority Manager Brian Robinson, who approached Pyle after
Sunday's baptisms, said the agency doesn't discourage religious
activities.
He said religious services, political rallies and private companies that
use the authority's four parks must confine their activities to a
reserved shelter or room so they do not interfere with other park
patrons.
Active church services, such as baptisms and revivals, or anything that
"takes on a public persona that others would take offense or object to,"
are not allowed in the common areas of the parks, Robinson said.
"We don't have a problem with providing shelters, but we don't want
others to feel forced to endure someone else's religion," he said.
In addition to Falmouth Waterfront Park, the regional authority oversees
St. Clair Brooks Park and Pratt Park in southern Stafford and Old Mill
Park in the city.
Park officials have had situations in the past where groups came in, set
up tents and loud speakers for revivals and tried to promote their
particular message to others, he said.
Members of Cornerstone Baptist, who didn't inform park officials before
the baptisms, were passing out literature Sunday, Robinson said.
But the policy, which is not in writing, prompted debate last night
during an emergency meeting of the Park Authority board. . . .
Some board members were confused about the policy. 

Tom Gordon, the authority's operations supervisor, said he thought
certain religious ceremonies--such as Easter sunrise services--were
permitted on a case-by-case basis.
Eric Olsen, the board's vice chairman, said he never understood that the
Park Authority had a policy on religious activities. Olsen proposed
creating a subcommittee to research the issue and report back when the
board meets next month. . . .
Yesterday, the ACLU wrote a Park Authority board member asking that the
agency assure the group that it has no ban on religious activities and
that it will allow baptisms at Falmouth Waterfront Park. . . .
"If a nonprofit swimming camp is doing the same thing, would it be
treated differently?" [U. Va. professor Robert O'Neil] asked. "If it's
discouraged, but not forbidden, then that's a problem."
Park Authority officials say they discourage swimming in the
Rappahannock River, but since the river is governed by state law, they
can't prohibit people from entering the water, Robinson said. 

The first drowning of this year occurred Sunday, upstream from the park
just hours after the baptisms. Over the years, the Rappahannock near
Fredericksburg has claimed dozens of lives, including four drownings
during the summer of 2002. . . .
___
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
 

___
To post, sen

RE: Follow up as to the baptisms in the park

[Volokh, Eugene]

I definitely take the view that religious speech and expressive
conduct may not be treated more favorably than political speech and
expressive conduct.

Eugene

> -Original Message-
> From: [EMAIL PROTECTED] 
> [mailto:[EMAIL PROTECTED] On Behalf Of 
> Marty Lederman
> Sent: Thursday, May 27, 2004 10:33 AM
> To: Law & Religion issues for Law Academics
> Subject: Re: Follow up as to the baptisms in the park
> 
> 
> Eugene:  Putting aside (if you can) the question whether it 
> is permissible for the park to confine "political activities" 
> to "a reserved shelter or room so they do not interfere with 
> other park patrons," do you agree that religious activities 
> should not -- must not? -- be treated more favorably than 
> political activities?
> 
> - Original Message - 
> From: "Volokh, Eugene" <[EMAIL PROTECTED]>
> To: <[EMAIL PROTECTED]>
> Sent: Thursday, May 27, 2004 1:24 PM
> Subject: Follow up as to the baptisms in the park
> 
> 
> It looks like there is a policy of prohibiting most public 
> religious activities in the park.  Wouldn't that be 
> unconstitutional in a traditional public forum (which the 
> park, though not the river, likely is), even if there is no 
> discrimination?  But it would also be some evidence that 
> there does appear to be religious discrimination even in the 
> river use policy.
> 
> Eugene
> 
> 
> 
> http://fredericksburg.com/News/FLS/2004/052004/05272004/1377386
> 
> . . .  Some who heard about the controversy say the rule may 
> be illegal and a form of religious discrimination.
> 
> "You can't treat religious expression in a public park any 
> different from any other kinds of expression," said Kent 
> Willis, executive director of the American Civil Liberties 
> Union of Virginia in Richmond.
> 
> Park Authority Manager Brian Robinson, who approached Pyle 
> after Sunday's baptisms, said the agency doesn't discourage 
> religious activities.
> 
> He said religious services, political rallies and private 
> companies that use the authority's four parks must confine 
> their activities to a reserved shelter or room so they do not 
> interfere with other park patrons.
> 
> Active church services, such as baptisms and revivals, or 
> anything that "takes on a public persona that others would 
> take offense or object to," are not allowed in the common 
> areas of the parks, Robinson said.
> 
> "We don't have a problem with providing shelters, but we 
> don't want others to feel forced to endure someone else's 
> religion," he said.
> 
> In addition to Falmouth Waterfront Park, the regional 
> authority oversees St. Clair Brooks Park and Pratt Park in 
> southern Stafford and Old Mill Park in the city.
> 
> Park officials have had situations in the past where groups 
> came in, set up tents and loud speakers for revivals and 
> tried to promote their particular message to others, he said.
> 
> Members of Cornerstone Baptist, who didn't inform park 
> officials before the baptisms, were passing out literature 
> Sunday, Robinson said.
> 
> But the policy, which is not in writing, prompted debate last 
> night during an emergency meeting of the Park Authority board. . . .
> 
> Some board members were confused about the policy.
> 
> Tom Gordon, the authority's operations supervisor, said he 
> thought certain religious ceremonies--such as Easter sunrise 
> services--were permitted on a case-by-case basis.
> 
> Eric Olsen, the board's vice chairman, said he never 
> understood that the Park Authority had a policy on religious 
> activities. Olsen proposed creating a subcommittee to 
> research the issue and report back when the board meets next 
> month. . . .
> 
> Yesterday, the ACLU wrote a Park Authority board member 
> asking that the agency assure the group that it has no ban on 
> religious activities and that it will allow baptisms at 
> Falmouth Waterfront Park. . . .
> 
> "If a nonprofit swimming camp is doing the same thing, would 
> it be treated differently?" [U. Va. professor Robert O'Neil] 
> asked. "If it's discouraged, but not forbidden, then that's a 
> problem."
> 
> Park Authority officials say they discourage swimming in the 
> Rappahannock River, but since the river is governed by state 
> law, they can't prohibit people from entering the water, 
> Robinson said.
> 
> The first drowning of this year occurred Sunday, upstream 
> from the park just hours after the baptisms. Over the years, 
> the Rappahannock near Fredericksburg has claimed dozens of 
> lives, including four drownings during the summer of 2002. . 
> . . ___
> 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
> 
> 
> ___
> To post, send message to [EMAIL PROTECTED]
> To subscribe, unsubscribe, change options, or get password, 
> see http://lists.ucla.edu

Re: Tax On Theology Majors

[A.E. Brownstein]

I don't know that I can explain or rationalize constitutional doctrine 
relating to taxes and subsidies, but the distinction between taxes and 
subsidies, burdens and benefits, takings and givings is fairly pervasive in 
constitutional law -- so much so that it is hardly surprising when the 
Court grounds decisions on these distinctions. In addition to free speech 
and free exercise rights, the dormant commerce clause and Takings clause 
cases recognize some variation of this distinction. Other rights, such as 
the right to have an abortion, accept the principle that the state can 
subsidize related and alternative activities (child birth and medical care) 
while declining to subsidize abortion.

Only time and future Court decisions will tell us how broadly Locke is 
going to be read -- but there certainly is a foundation for grounding its 
analysis on the distinction between subsidizing the exercise of religion 
and taxing or regulating the exercise of religion.

A doctrinal explanation for deciding Locke and the Tax hypo differently 
might read like this --

There is substantial case law prohibiting the state from penalizing the 
exercise of rights by denying individuals unrelated benefits (that is, 
benefits not involving subsidizing the exercise of the right itself) that 
they would otherwise be entitled to -- but for the fact that they exercised 
a right. It would be unconstitutional to deny a woman medicaid benefits for 
treating a broken leg because the woman elected to have an unsubsidized 
abortion. Now if the state gives women medical "scholarships" -- subsidies 
that they can use for medical care -- but restricts the use of the subsidy 
by prohibiting its use to pay for an abortion, I think that is probably 
constitutional under Harris v. McRae. But if the woman has an abortion that 
she pays for with her own funds, and the state denies her the medical 
subsidy for other treatments because she did so -- I think that is an 
unconstitutional penalty. For the same reason in Locke, if the student 
majors in theology at a college he pays for with his own funds, he can not 
be denied a scholarship for his other studies.

In a sense, we could consider a tax on theology majors or a tax on having 
an abortion as a penalty on the exercise of the right. It is just like 
denying a person an unrelated benefit because they exercise a right. The 
person loses something extra because they exercise a right.

Of course this depends on the premise that the state's refusal to subsidize 
the exercise of a right is different than the state's denial of unrelated 
benefits in response to an individual's exercise of a right. That premise 
may be illogical or just plain wrong -- but it is not uncommon.

Alan Brownstein
UC Davis

At 08:37 AM 5/27/2004 -0700, you wrote:
Doug and Marty's intuitions are mine as well. I am
just trying to figure out reasoning that decides Locke
one way and the tax case the other.
Another distinction emhasized by Locke and which forms
part of its narrow holding is that in Locke the
student could still keep the scholarship (in theory at
least) by attending a second college and pursuing an
acceptable major there. Thus, if Locke had attended
both seminary and, say, U of W, he could have used his
scholarship to attend the U while still pursuing his
theology degree w/out penalty. In other words,
theology majors are not denied a scholarship, they
simply can not use it to pay for their pursuit of a
theology major.
In the hypo, that is not possible. The $1,000 tax
would hit Locke merely for majoring in theology.
Rick
--- Douglas Laycock <[EMAIL PROTECTED]>
wrote:
> Rick Duncan wrote:
>
> >I think the point is that from an economic
> >perspective, there is little or no difference
> between
> >a targeted $1,000 tax and a targeted exclusion from
> a
> >generally available $1,000 benefit. The Court has
> >specifically made this point on many occasions
> >including, I believe, in Sherbert.
>
>  Sometimes they say this, and sometimes they
> say the zero point
> matters.  Walz v. New York and Lemon v. Kurtzman are
> only one year apart; a
> tax exemption looked very different from a cash
> subsidy.  They also have a
> strong intuition that no one is entitled to a cash
> subsidy; it is not a
> judicial function to order one.  Rebuttable, but
> perhaps only in speech
> cases.
>
>  I share Marty's intuition that this
> hypothetical is one where the
> zero point would matter to them; a flagrantly
> discriminatory tax would look
> different from a flagrantly discriminatory refusal
> to subsidize.  The long
> tradition of no tax and no subsidy no doubt affects
> their intuition on
> both questions.
>
>
>
>
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX  78705
>  512-232-1341 (voice)
>  512-471-6988 (fax)
>  [EMAIL PROTECTED]
>
> ___
> To post, send message to [EMAIL PROTECTED]
> To subscribe

Re: Follow up as to the baptisms in the park

[Marty Lederman]

Eugene:  Putting aside (if you can) the question whether it is permissible
for the park to confine "political activities" to "a reserved shelter or
room so they do not interfere with other park patrons," do you agree that
religious activities should not -- must not? -- be treated more favorably
than political activities?

- Original Message - 
From: "Volokh, Eugene" <[EMAIL PROTECTED]>
To: <[EMAIL PROTECTED]>
Sent: Thursday, May 27, 2004 1:24 PM
Subject: Follow up as to the baptisms in the park


It looks like there is a policy of prohibiting most public
religious activities in the park.  Wouldn't that be unconstitutional in
a traditional public forum (which the park, though not the river, likely
is), even if there is no discrimination?  But it would also be some
evidence that there does appear to be religious discrimination even in
the river use policy.

Eugene



http://fredericksburg.com/News/FLS/2004/052004/05272004/1377386

. . .  Some who heard about the controversy say the rule may be illegal
and a form of religious discrimination.

"You can't treat religious expression in a public park any different
from any other kinds of expression," said Kent Willis, executive
director of the American Civil Liberties Union of Virginia in Richmond.

Park Authority Manager Brian Robinson, who approached Pyle after
Sunday's baptisms, said the agency doesn't discourage religious
activities.

He said religious services, political rallies and private companies that
use the authority's four parks must confine their activities to a
reserved shelter or room so they do not interfere with other park
patrons.

Active church services, such as baptisms and revivals, or anything that
"takes on a public persona that others would take offense or object to,"
are not allowed in the common areas of the parks, Robinson said.

"We don't have a problem with providing shelters, but we don't want
others to feel forced to endure someone else's religion," he said.

In addition to Falmouth Waterfront Park, the regional authority oversees
St. Clair Brooks Park and Pratt Park in southern Stafford and Old Mill
Park in the city.

Park officials have had situations in the past where groups came in, set
up tents and loud speakers for revivals and tried to promote their
particular message to others, he said.

Members of Cornerstone Baptist, who didn't inform park officials before
the baptisms, were passing out literature Sunday, Robinson said.

But the policy, which is not in writing, prompted debate last night
during an emergency meeting of the Park Authority board. . . .

Some board members were confused about the policy.

Tom Gordon, the authority's operations supervisor, said he thought
certain religious ceremonies--such as Easter sunrise services--were
permitted on a case-by-case basis.

Eric Olsen, the board's vice chairman, said he never understood that the
Park Authority had a policy on religious activities. Olsen proposed
creating a subcommittee to research the issue and report back when the
board meets next month. . . .

Yesterday, the ACLU wrote a Park Authority board member asking that the
agency assure the group that it has no ban on religious activities and
that it will allow baptisms at Falmouth Waterfront Park. . . .

"If a nonprofit swimming camp is doing the same thing, would it be
treated differently?" [U. Va. professor Robert O'Neil] asked. "If it's
discouraged, but not forbidden, then that's a problem."

Park Authority officials say they discourage swimming in the
Rappahannock River, but since the river is governed by state law, they
can't prohibit people from entering the water, Robinson said.

The first drowning of this year occurred Sunday, upstream from the park
just hours after the baptisms. Over the years, the Rappahannock near
Fredericksburg has claimed dozens of lives, including four drownings
during the summer of 2002. . . .
___
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


___
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

Follow up as to the baptisms in the park

[Volokh, Eugene]

It looks like there is a policy of prohibiting most public
religious activities in the park.  Wouldn't that be unconstitutional in
a traditional public forum (which the park, though not the river, likely
is), even if there is no discrimination?  But it would also be some
evidence that there does appear to be religious discrimination even in
the river use policy.

Eugene



http://fredericksburg.com/News/FLS/2004/052004/05272004/1377386

. . .  Some who heard about the controversy say the rule may be illegal
and a form of religious discrimination.

"You can't treat religious expression in a public park any different
from any other kinds of expression," said Kent Willis, executive
director of the American Civil Liberties Union of Virginia in Richmond.

Park Authority Manager Brian Robinson, who approached Pyle after
Sunday's baptisms, said the agency doesn't discourage religious
activities.

He said religious services, political rallies and private companies that
use the authority's four parks must confine their activities to a
reserved shelter or room so they do not interfere with other park
patrons.

Active church services, such as baptisms and revivals, or anything that
"takes on a public persona that others would take offense or object to,"
are not allowed in the common areas of the parks, Robinson said.

"We don't have a problem with providing shelters, but we don't want
others to feel forced to endure someone else's religion," he said.

In addition to Falmouth Waterfront Park, the regional authority oversees
St. Clair Brooks Park and Pratt Park in southern Stafford and Old Mill
Park in the city.

Park officials have had situations in the past where groups came in, set
up tents and loud speakers for revivals and tried to promote their
particular message to others, he said.

Members of Cornerstone Baptist, who didn't inform park officials before
the baptisms, were passing out literature Sunday, Robinson said.

But the policy, which is not in writing, prompted debate last night
during an emergency meeting of the Park Authority board. . . .

Some board members were confused about the policy. 

Tom Gordon, the authority's operations supervisor, said he thought
certain religious ceremonies--such as Easter sunrise services--were
permitted on a case-by-case basis.

Eric Olsen, the board's vice chairman, said he never understood that the
Park Authority had a policy on religious activities. Olsen proposed
creating a subcommittee to research the issue and report back when the
board meets next month. . . .

Yesterday, the ACLU wrote a Park Authority board member asking that the
agency assure the group that it has no ban on religious activities and
that it will allow baptisms at Falmouth Waterfront Park. . . .

"If a nonprofit swimming camp is doing the same thing, would it be
treated differently?" [U. Va. professor Robert O'Neil] asked. "If it's
discouraged, but not forbidden, then that's a problem."

Park Authority officials say they discourage swimming in the
Rappahannock River, but since the river is governed by state law, they
can't prohibit people from entering the water, Robinson said. 

The first drowning of this year occurred Sunday, upstream from the park
just hours after the baptisms. Over the years, the Rappahannock near
Fredericksburg has claimed dozens of lives, including four drownings
during the summer of 2002. . . .
___
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

Re: Tax On Theology Majors

[Stuart BUCK]

Obviously it's a framing bias, right?  The two policies are equivalent in 
economic terms: The person who studies theology is $1000 worse off than 
everyone else.  Our intuitions might be to treat the policies differently, 
but isn't that irrational?  It's like opposing the gas station's "credit 
card premium" charge, but being fooled if they have the same price structure 
but use the term "cash discount." It reminds me of what Sunstein says in 
discussing framing biases:

People are averse to losses, but whether an event "codes" as a loss or a 
gain depends not on simple facts but on a range of contextual factors, 
including how the event is framed. The status quo is usually the reference 
point, so that losses are understood as such by reference to existing 
distributions and practices; but it is possible to manipulate the frame so 
as to make a change "code" as a loss rather than a gain, or vice versa. 
Consider a company that says "cash discount" rather than "credit card 
surcharge"; or a parent who says that for behavior X (rather than behavior 
Y) a child will be rewarded, as opposed to saying that for behavior Y 
(rather than behavior X) a child will be punished . . . .

Cass R. Sunstein, Behavioral Analysis of Law, 64 U. Chi. L. Rev. 1175, 1180 
(1997).

Or consider the following passage:
The consumer encounters similar tactics at the next stop after her car 
purchase, the gas station. Much attention has been given to the notion of 
offering cash discounts rather than credit card premiums. 83 "Indeed, the 
credit card lobby is said to insist that any price difference between cash 
and card purchases should be labeled a cash discount rather than a credit 
surcharge." 84 The credit card industry does so because a "cash discount" 
takes advantage of framing effects. As we discussed in our companion 
article, the frame within which information is presented can significantly 
alter one's perception of that information, especially when one can perceive 
the information as a gain or a loss. 85 By avoiding the perception that 
paying by credit card results in a loss, gas retailers also avoid a decrease 
in demand from credit card consumers.

Jon Hanson and Douglas Kysar, Taking Behavioralism Seriously: Evidence of 
Market Manipulation, 112 Harv. L. Rev. 1420, 1441 (1999).


From: Rick Duncan <[EMAIL PROTECTED]>
Reply-To: Law & Religion issues for Law Academics 
<[EMAIL PROTECTED]>
To: Law & Religion issues for Law Academics <[EMAIL PROTECTED]>
Subject: Re: Tax On Theology Majors
Date: Thu, 27 May 2004 08:37:59 -0700 (PDT)

Doug and Marty's intuitions are mine as well. I am
just trying to figure out reasoning that decides Locke
one way and the tax case the other.
Another distinction emhasized by Locke and which forms
part of its narrow holding is that in Locke the
student could still keep the scholarship (in theory at
least) by attending a second college and pursuing an
acceptable major there. Thus, if Locke had attended
both seminary and, say, U of W, he could have used his
scholarship to attend the U while still pursuing his
theology degree w/out penalty. In other words,
theology majors are not denied a scholarship, they
simply can not use it to pay for their pursuit of a
theology major.
In the hypo, that is not possible. The $1,000 tax
would hit Locke merely for majoring in theology.
Rick
--- Douglas Laycock <[EMAIL PROTECTED]>
wrote:
> Rick Duncan wrote:
>
> >I think the point is that from an economic
> >perspective, there is little or no difference
> between
> >a targeted $1,000 tax and a targeted exclusion from
> a
> >generally available $1,000 benefit. The Court has
> >specifically made this point on many occasions
> >including, I believe, in Sherbert.
>
>  Sometimes they say this, and sometimes they
> say the zero point
> matters.  Walz v. New York and Lemon v. Kurtzman are
> only one year apart; a
> tax exemption looked very different from a cash
> subsidy.  They also have a
> strong intuition that no one is entitled to a cash
> subsidy; it is not a
> judicial function to order one.  Rebuttable, but
> perhaps only in speech
> cases.
>
>  I share Marty's intuition that this
> hypothetical is one where the
> zero point would matter to them; a flagrantly
> discriminatory tax would look
> different from a flagrantly discriminatory refusal
> to subsidize.  The long
> tradition of no tax and no subsidy no doubt affects
> their intuition on
> both questions.
>
>
>
>
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX  78705
>  512-232-1341 (voice)
>  512-471-6988 (fax)
>  [EMAIL PROTECTED]
>
> ___
> 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
=
Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
"When the Round Ta

RE: Tax On Theology Majors

[Kim Colby]

Rick's discussion touches a point that I find particularly troubling
about the Locke decision.  Rick is correct that Joshua Davey could have
kept the scholarship if he had double enrolled at two colleges and used
the scholarship to pay for tuition at the college where he had not
declared a theology major.

But more troubling to me is the fact that Davey could have enrolled at
the University of Washington, declared a theology major, and kept the
scholarship. It seems downright weird that the State of Washington
allegedly has a strong state interest in not giving equal funding to a
handful of theology majors who otherwise qualify for its widely
available Promise Scholarships, yet that strong interest in not
assisting in clergy training fails to prevent the State of Washington
from offering and funding the study of theology at its own universities.


Perhaps this point goes to whether Washington State's proffered interest
in not funding clergy training should have met the rational basis
standard of review that the Court seemed to employ.

Kim Colby

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Thursday, May 27, 2004 11:38 AM
To: Law & Religion issues for Law Academics
Subject: Re: Tax On Theology Majors


Doug and Marty's intuitions are mine as well. I am
just trying to figure out reasoning that decides Locke
one way and the tax case the other.

Another distinction emhasized by Locke and which forms
part of its narrow holding is that in Locke the
student could still keep the scholarship (in theory at
least) by attending a second college and pursuing an
acceptable major there. Thus, if Locke had attended
both seminary and, say, U of W, he could have used his scholarship to
attend the U while still pursuing his theology degree w/out penalty. In
other words, theology majors are not denied a scholarship, they simply
can not use it to pay for their pursuit of a theology major.

In the hypo, that is not possible. The $1,000 tax
would hit Locke merely for majoring in theology.

Rick

--- Douglas Laycock <[EMAIL PROTECTED]>
wrote:
> Rick Duncan wrote:
> 
> >I think the point is that from an economic
> >perspective, there is little or no difference
> between
> >a targeted $1,000 tax and a targeted exclusion from
> a
> >generally available $1,000 benefit. The Court has specifically made 
> >this point on many occasions including, I believe, in Sherbert.
> 
>  Sometimes they say this, and sometimes they
> say the zero point
> matters.  Walz v. New York and Lemon v. Kurtzman are
> only one year apart; a 
> tax exemption looked very different from a cash
> subsidy.  They also have a 
> strong intuition that no one is entitled to a cash
> subsidy; it is not a 
> judicial function to order one.  Rebuttable, but
> perhaps only in speech 
> cases.
> 
>  I share Marty's intuition that this
> hypothetical is one where the
> zero point would matter to them; a flagrantly
> discriminatory tax would look 
> different from a flagrantly discriminatory refusal
> to subsidize.  The long 
> tradition of no tax and no subsidy no doubt affects 
> their intuition on 
> both questions.
> 
> 
> 
> 
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX  78705
>  512-232-1341 (voice)
>  512-471-6988 (fax)
>  [EMAIL PROTECTED]
> 
> ___
> 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


=
Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or
Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or
numbered."  --The Prisoner




__
Do you Yahoo!?
Friends.  Fun.  Try the all-new Yahoo! Messenger.
http://messenger.yahoo.com/ 
___
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

___
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

Re: Tax On Theology Majors

[Rick Duncan]

Doug and Marty's intuitions are mine as well. I am
just trying to figure out reasoning that decides Locke
one way and the tax case the other.

Another distinction emhasized by Locke and which forms
part of its narrow holding is that in Locke the
student could still keep the scholarship (in theory at
least) by attending a second college and pursuing an
acceptable major there. Thus, if Locke had attended
both seminary and, say, U of W, he could have used his
scholarship to attend the U while still pursuing his
theology degree w/out penalty. In other words,
theology majors are not denied a scholarship, they
simply can not use it to pay for their pursuit of a
theology major.

In the hypo, that is not possible. The $1,000 tax
would hit Locke merely for majoring in theology.

Rick

--- Douglas Laycock <[EMAIL PROTECTED]>
wrote:
> Rick Duncan wrote:
> 
> >I think the point is that from an economic
> >perspective, there is little or no difference
> between
> >a targeted $1,000 tax and a targeted exclusion from
> a
> >generally available $1,000 benefit. The Court has
> >specifically made this point on many occasions
> >including, I believe, in Sherbert.
> 
>  Sometimes they say this, and sometimes they
> say the zero point 
> matters.  Walz v. New York and Lemon v. Kurtzman are
> only one year apart; a 
> tax exemption looked very different from a cash
> subsidy.  They also have a 
> strong intuition that no one is entitled to a cash
> subsidy; it is not a 
> judicial function to order one.  Rebuttable, but
> perhaps only in speech 
> cases.
> 
>  I share Marty's intuition that this
> hypothetical is one where the 
> zero point would matter to them; a flagrantly
> discriminatory tax would look 
> different from a flagrantly discriminatory refusal
> to subsidize.  The long 
> tradition of no tax and no subsidy no doubt affects 
> their intuition on 
> both questions.
> 
> 
> 
> 
> Douglas Laycock
> University of Texas Law School
> 727 E. Dean Keeton St.
> Austin, TX  78705
>  512-232-1341 (voice)
>  512-471-6988 (fax)
>  [EMAIL PROTECTED]
> 
> ___
> 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


=
Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: 
middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  
--The Prisoner




__
Do you Yahoo!?
Friends.  Fun.  Try the all-new Yahoo! Messenger.
http://messenger.yahoo.com/ 
___
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

Re: Tax On Theology Majors

[Douglas Laycock]

Rick Duncan wrote:
I think the point is that from an economic
perspective, there is little or no difference between
a targeted $1,000 tax and a targeted exclusion from a
generally available $1,000 benefit. The Court has
specifically made this point on many occasions
including, I believe, in Sherbert.
Sometimes they say this, and sometimes they say the zero point 
matters.  Walz v. New York and Lemon v. Kurtzman are only one year apart; a 
tax exemption looked very different from a cash subsidy.  They also have a 
strong intuition that no one is entitled to a cash subsidy; it is not a 
judicial function to order one.  Rebuttable, but perhaps only in speech 
cases.

I share Marty's intuition that this hypothetical is one where the 
zero point would matter to them; a flagrantly discriminatory tax would look 
different from a flagrantly discriminatory refusal to subsidize.  The long 
tradition of no tax and no subsidy no doubt affects  their intuition on 
both questions.


Douglas Laycock
University of Texas Law School
727 E. Dean Keeton St.
Austin, TX  78705
512-232-1341 (voice)
512-471-6988 (fax)
[EMAIL PROTECTED]
___
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

Re: Tax On Theology Majors

[Rick Duncan]

--- Marty Lederman <[EMAIL PROTECTED]> wrote:
> What would be the conceivable state interest in
> imposing such a targeted tax?  Assuming there is no
> legitimate interest in singling out "theology from a
> devotional perspective," the classification would
> violate the Equal Protection Clause, and presumably
> the Free Exercise Clause as well, per Lukumi. 

In addition to revenue as per my last post, another
conceivable legitimate state interest is the same one
advanced in Locke--the state wants to make sure that
*no* tax funds go to the training of clergy. The
legislature might decide that lots of state funds
subsidize seminaries. For example, seminaries get the
benefits of roads and infrastructure, of police and
fire protection, etc. The $1,000 tax might be seen as
a means of recapturing those subsidies and thus of
ensuring that citizens of the state not be taxed to
fund the training of clergy.

Is this a legitimate interest? Why not? It is
certainly true that religious seminaries do receive
lots of benefits from general governmental services.
Why is it illegitimate for a state to try to recapture
some of those tax dollars and thus protect the 
consciences of citizens who do not wish to fund
religion?

Again, I think Locke is to Free Ex as Marsh v.
Chambers is to the EC. A narrow exception based on the
Court's understanding of historical tradition. This
narrow exception requires the drawing of fine (perhaps
irrational) lines to carve it out. 

Rick


=
Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: 
middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  
--The Prisoner




__
Do you Yahoo!?
Friends.  Fun.  Try the all-new Yahoo! Messenger.
http://messenger.yahoo.com/ 
___
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

Re: Tax On Theology Majors

[Rick Duncan]

If it is pure rational basis, I guess the legitimate
interest might be in raising revenue. The law is
generally very deferential toward classifications
concerning tax policy, even toward classifications
that appear irrational(just look at the IRC for an
infinity of examples).

I think the point is that from an economic
perspective, there is little or no difference between
a targeted $1,000 tax and a targeted exclusion from a
generally available $1,000 benefit. The Court has
specifically made this point on many occasions
including, I believe, in Sherbert.

If the latter is a trivial burden on Free Ex, so also
is the former.

I am sure the Court would strike down the targeted tax
as a violation of the core of Smith, but it is
difficult to square this result with Locke. Unless
Locke is, as I think it is, a narrow decision carving
out a special rule allowing states to exclude
clergy-in-training from generally available funding
programs.

Rick




=
Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: 
middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  
--The Prisoner




__
Do you Yahoo!?
Friends.  Fun.  Try the all-new Yahoo! Messenger.
http://messenger.yahoo.com/ 
___
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

Re: Tax On Theology Majors

[Marty Lederman]

What would be the conceivable state interest in 
imposing such a targeted tax?  Assuming there is no legitimate interest in 
singling out "theology from a devotional perspective," the classification 
would violate the Equal Protection Clause, and presumably the Free Exercise 
Clause as well, per Lukumi.  
 
 
- Original Message - 
From: "Rick Duncan" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" 
<[EMAIL PROTECTED]>
Sent: Thursday, May 27, 2004 10:07 AM
Subject: Tax On Theology Majors
> Suppose a state enacted a $1,000 per year tax on> students 
majoring in theology from a devotional> perspective. Would this violate 
Free Ex under Locke?> Would it be unlawful viewpoint discrimination 
under> the FSC?> > Rick> > => Rick 
Duncan > Welpton Professor of Law > University of Nebraska College 
of Law > Lincoln, NE 68583-0902> > "When the Round Table is 
broken every man must follow either Galahad or Mordred: middle things are gone." 
C.S.Lewis, Grand Miracle> > "I will not be pushed, filed, stamped, 
indexed, briefed, debriefed, or numbered."  --The Prisoner> > 
> > > __> Do you 
Yahoo!?> Friends.  Fun.  Try the all-new Yahoo! 
Messenger.> http://messenger.yahoo.com/ > 
___> 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> 
___
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

Tax On Theology Majors

[Rick Duncan]

Suppose a state enacted a $1,000 per year tax on
students majoring in theology from a devotional
perspective. Would this violate Free Ex under Locke?
Would it be unlawful viewpoint discrimination under
the FSC?

Rick

=
Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902

"When the Round Table is broken every man must follow either Galahad or Mordred: 
middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered."  
--The Prisoner




__
Do you Yahoo!?
Friends.  Fun.  Try the all-new Yahoo! Messenger.
http://messenger.yahoo.com/ 
___
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