Re: proselytization

[Will Linden]

At 12:14 PM 12/21/04 -0500, you wrote:

   
I'm not sure why this should be relevant. If the term is typically used
by a particular party in a certain type of context, then engage that
party by asking him or her  to explain the term's use, and then
argue against this use if it's incorrect. Why not take this approach
rather than seeming to disable the term even when used to describe
conversations about religion between neighbors?
 Well, because one sees how well such an approach works in the case
of "cult" (i.e., not at all).



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Re: Are the Ten Commandments the foundation ofthe Anglo-Americanlegal system?

[JMHACLJ]

In a message dated 12/23/2004 2:13:41 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

Paul, you give Lincoln far too much credit, I fear.  Take a look at his
relations with African-Americans, his condescension, and worse.  On the
subject of race, he was a bad man, pure and simple.

Lincoln was clearly a Declaration man.  And he was clearly a man who understood the cost to the nation of the degrading practice of enslaving men.  True enough, like Jefferson before him, he considered the African inferior to white man and doubted that the freed slave could be assimilated into society.  But a bad man?  I wonder. 

Jim Henderson
Senior Counsel
ACLJ
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Re: charitable choice hypothetical

[A.E. Brownstein]

I'm certainly not arguing that this is constitutional. But I also don't 
think that "I can't imagine anyone thinking this is constitutional" answers 
why it is unconstitutional.

I suppose part of the problem here is that we apparently disagree as to the 
rationales for allowing discrimination in hiring by religious 
organizations. I think one of the rationales is that some religious 
organizations believe that the people performing the service at, with, or 
for a religious organization should be of like minded creed. Particularly, 
in a school context it is not difficult for me to understand why a 
religious school would prefer that everyone working with children to be of 
the same faith -- even if they were on the government's payroll.

Thus, under charitable choice a religious non governmental provider could 
not be required to participate in an ecumenical program where members of 
diverse faiths would work together, for example, in staffing a soup 
kitchen. Having non-believers working in the program would be unacceptable 
whether they were on the government payroll, on a different religious 
organization's payroll or the religious institution's payroll. I take it 
your position is that having co-workers with shared beliefs is not part of 
the rationale for charitable choice -- and that the key concerns involve 
non-believing employees having an employment or other financial 
relationship with the religious provider.

I don't discount these latter rationales, but I have certainly heard the 
former ones expressed as well.

Alan Brownstein
UC Davis

At 04:31 PM 12/23/2004 -0500, you wrote:
Well, I suppose the reasons that there is "no conventional Establishment 
Clause basis for objecting to my hypotheticals" are that (i) I can't 
imagine anyone actually suggesting that state staffing decisions be made 
on the basis of religion and (ii) that it seems clear that it would be 
unconstitutional.  States simply cannot make staffing decisions on the 
basis of employees' religion.  Indeed, that would even be the case where 
there is a religious "accommodation," such as provision of chaplains in 
the military or in prison -- assignments can't be made on the basis of the 
chaplains' religion.

But even if one could imagine a situation in those contexts where 
religious selectivity might be acceptable (e.g., a Catholic soldier asking 
for a priest rather than a rabbi to administer last rites, where the 
choice does not affect the employment oppotunities of either chaplain), 
what would be the theory here?  If the bus driver is a state employee 
(i.e., a state actor), what possible reason would the school have for 
insisting that she be of a particular religion?  As far as I can tell -- 
having given the question about two seconds of thought -- none of the 
usual rationales for coreligionist hiring in the charitable-choice context 
would be apposite where, as here, the driver is an employee of the state 
and is not acting as part of a church or as a surrogate of the school.


- Original Message -
From: "A.E. Brownstein" 
<[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" 
<religionlaw@lists.ucla.edu>
Sent: Thursday, December 23, 2004 4:19 PM
Subject: Re: charitable choice hypothetical

> Thanks for a thoughtful response, Marty. But in fact I am asking a version
> of the more extreme question that you presume is answered by the case law.
> In my hypo, the state is providing the bus service. There are two subsets
> of the question. One involves the religious institution being given a
> choice among existing state employees of who is assigned to the job of bus
> driver (if no one of the appropriate faith is currently employed by the
> state, the accommodation can not be provided.)  The other involves the
> state taking the religious institution's accommodation needs into account
> in making hiring decisions. I don't think either Torcaso or Larkin control
> the first question. Indeed, it is not entirely clear to me that either
> Article VI or Larkin control the second situation. The accommodation here
> is available to all religious schools so the state is not denying all
> employment to persons of a particular religion. Obviously, there will be
> more job opportunities for members of larger faiths than smaller faiths.
> But is that really a prohibited religious test for office. I assume that
> there are more Protestant Ministers hired as Army Chaplains than Rabbis
> (because there are more Protestant than Jewish soldiers) but I don't think
> that violates Article VI.
>
> The Larkin analogy is stronger. But it turns on what constitutes a
> delegation of power. It might not be hard to structure the 
accommodation to
> avoid that constraint. There is also the question of why giving a 
religious
> institution capital, real property, or materials that may be used in a
> religiously discriminatory way is substantively different than giving t

Re: Tax subsidies vs. non-tax subsidies

[A.E. Brownstein]

Two quick responses, Eugene.
First, would economists distinguish between the government giving a 
religious institution cash subsidies (enough to hire a person for a 
particular job with appropriate benefits) to hire someone to provide some 
secular assistance to a religious school or charity and the government 
hiring a person that satisfied the religious institution's employment 
criteria (including religious belief) and assigning the employee to the 
institution to provide the same assistance? Assuming that this is a general 
program available to both secular and religious non governmental providers, 
if the former is constitutional, is the latter constitutional?

Second, the answer to these exemption/subsidy issues may not be either of 
the two alternatives that you suggest (as Marty says, notwithstanding what 
economists think). Working out a framework to reconcile conflicting values 
in the religion clause area may involve line drawing that is in part 
arbitrary and in part represents an assessment of risks to be avoided and 
goals to be achieved. Tax exemptions as Marty argues may be less prone to 
manipulation and government favoritism, taxing religious institutions may 
be viewed as particularly threatening to religious autonomy, tax deductions 
are more consistent with a tradition of religious voluntarism than 
subsidies etc.

Or to put the issue in a broader perspective, many religious communities, 
particularly minority faiths, need both independence and autonomy (for want 
of a better term call it reserved private space) and the ability to 
participate with others in the larger community, economy, society, and 
polity (call that access to public space).  Serving both objectives 
requires putting some limits on turning government resources (and even some 
private resources e.g. corporate commercial employers) into reserved 
private space. Distinguishing between tax exemptions, vouchers, tax 
deductions, direct subsidies etc are arguably imprecise but useful ways to 
accomplish those objectives. Certainly one may argue that compared to many 
other societies, religious liberty and equality (and religion generally) 
have flourished in the U.S. during the period in which those distinctions 
have been recognized.

Alan Brownstein

Eugene writes
It seems to me that this brings up the old question of the extent to which 
tax exemptions are effectively subsidies.  The Court has generally held 
that they are, see, e.g., Texas Monthly v. Bullock (religion-preferential 
tax exemption violates the Establishment Clause); Bob Jones Univ. v. U.S. 
(the government has a compelling interest in not subsidizing 
discrimination, which justifies denying tax exemption to a racially 
discriminatory schools); Taxation With Representation v. Regan (special 
tax exemption for veteran's groups that lets them, but not other 
tax-exempt groups, lobby is permissible under the Free Speech Clause 
because it's just a subsidy to those groups).  Economists likewise tell us 
that they are.

If this is so, then it seems to me that either (1) religious institutions 
*must* be denied tax exemptions under the Establishment Clause, because 
they are legally allowed to discriminate based on religion and because 
they often do so discriminate, or (2) religious institutions *need not* be 
denied the ability to participate in generally available aid programs (at 
least ones in which the money is distributed based on objective criteria) 
even if they discriminate, since those programs are just like tax 
exemptions.  (This intentionally doesn't speak to whether the First 
Amendment *requires* that religiously discriminatory organizations be 
included in the programs, only to whether it *forbids* such inclusion.)

Now perhaps, as Marty suggests, the answer is indeed different when the 
aid program (unlike exemption programs) is administered pursuant to 
subjective criteria rather than objective ones.  But if the government 
pays for the cost of all school bus service, lets schools hire their own 
drivers, and doesn't object when religious schools hire based on religion, 
then it strikes me as quite similar to the government giving a tax 
exemption to all donors to charitable causes, and doesn't object when 
religious recipients of the donations hire based on religion.

Eugene
d as private.  Anyone can subscribe to the list and read messages that are 
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Re: charitable choice hypothetical

[Marty Lederman]

Well, I suppose the reasons that there is 
"no conventional Establishment Clause basis for 
objecting to my hypotheticals" are that (i) I can't imagine anyone actually 
suggesting that state staffing decisions be made on the basis of religion and 
(ii) that it seems clear that it would be unconstitutional.  States 
simply cannot make staffing decisions on the basis of employees' religion.  
Indeed, that would even be the case where there is a religious "accommodation," 
such as provision of chaplains in the military or in prison -- assignments can't 
be made on the basis of the chaplains' religion.
 
But even if one could imagine a situation in those 
contexts where religious selectivity might be acceptable (e.g., a Catholic 
soldier asking for a priest rather than a rabbi to administer last rites, where 
the choice does not affect the employment oppotunities of either chaplain), what 
would be the theory here?  If the bus driver is a state employee (i.e., a 
state actor), what possible reason would the school have for insisting that she 
be of a particular religion?  As far as I can tell -- having given the 
question about two seconds of thought -- none of the usual rationales 
for coreligionist hiring in the charitable-choice context would be apposite 
where, as here, the driver is an employee of the state and is not acting as part 
of a church or as a surrogate of the school.
 
 
  
- Original Message - 
From: "A.E. Brownstein" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" 

Sent: Thursday, December 23, 2004 4:19 
PM
Subject: Re: charitable choice 
hypothetical
> Thanks for a thoughtful response, Marty. But in fact I am asking a 
version > of the more extreme question that you presume is answered by 
the case law. > In my hypo, the state is providing the bus service. There 
are two subsets > of the question. One involves the religious institution 
being given a > choice among existing state employees of who is assigned 
to the job of bus > driver (if no one of the appropriate faith is 
currently employed by the > state, the accommodation can not be 
provided.)  The other involves the > state taking the religious 
institution's accommodation needs into account > in making hiring 
decisions. I don't think either Torcaso or Larkin control > the first 
question. Indeed, it is not entirely clear to me that either > Article VI 
or Larkin control the second situation. The accommodation here > is 
available to all religious schools so the state is not denying all > 
employment to persons of a particular religion. Obviously, there will be 
> more job opportunities for members of larger faiths than smaller 
faiths. > But is that really a prohibited religious test for office. I 
assume that > there are more Protestant Ministers hired as Army Chaplains 
than Rabbis > (because there are more Protestant than Jewish soldiers) 
but I don't think > that violates Article VI.> > The Larkin 
analogy is stronger. But it turns on what constitutes a > delegation of 
power. It might not be hard to structure the accommodation to > avoid 
that constraint. There is also the question of why giving a religious > 
institution capital, real property, or materials that may be used in a > 
religiously discriminatory way is substantively different than giving them 
> a state paid employment position for delegation purposes. I do not 
suggest > that there may not be persuasive answers to these questions, 
but they may > not be as self evident as you suggest.> > 
Marty, may I assume from your answer that you agree that Article VI and > 
Larkin aside, there is no conventional Establishment Clause basis for > 
objecting to my hypotheticals.> > Alan Brownstein> UC 
Davis> > At 03:03 PM 12/23/2004 -0500, you wrote:>>A 
complicated question, I think, Alan.  I assume, in your hypo, that the 
>>state is simply paying for the cost of bus service, right? -- not 
actually >>providing the service through the auspices of a state-run 
transporation >>outfit.  Because if the bus driver were actually 
an employee of the state, >>obviously the state could not limit its 
employment decisions to persons of >>a particular religion.  See 
Torcaso; McDaniel; article VI, etc.  Nor could >>the state cede 
the power to religious institutions to cabin the state's >>own choices 
of whom to employ (Larkin).So let's assume a program of 
direct payment to private schools for the >>costs of providing bus 
service.  Under current doctrine (which might not >>be for long 
for this world), the dollars could not be expended on >>"specifically" 
religious activity, such as proselytizing, bible studies or 
>>prayer.  (Bowen v. Kendrick; Tilton; SOC's opinion in Michell 
v. >>Helms.)  The question, then, would be why such dollars could 
be used for >>discriminatory hiring practices -- i.e., why 
coreligionist hiring is >>constitutionally distinct in this cotext 
from prayer, bible studies, etc., >>even though the 

Re: Tax subsidies vs. non-tax subsidies

[A.E. Brownstein]

That is a  very interesting and difficult question, Marty. But as my most 
immediate post suggests, I was asking a different question.
Alan Brownstein
UC Davis
But again, I believe that Alan was assuming that the law on direct funding 
as we've known it since at least 1971 will continue to be the law -- at 
least as long as SOC is on the Court -- and was asking why direct aid, if 
it cannot be diverted to religious activity, can be used to discriminate 
on the basis of religion in employment.  And that is, I think, a very 
interesting and difficult question.

- Original Message -
From: Volokh, Eugene
To: Law & Religion issues for Law 
Academics
Sent: Thursday, December 23, 2004 3:21 PM
Subject: Tax subsidies vs. non-tax subsidies

It seems to me that this brings up the old question of the extent to which 
tax exemptions are effectively subsidies.  The Court has generally held 
that they are, see, e.g., Texas Monthly v. Bullock (religion-preferential 
tax exemption violates the Establishment Clause); Bob Jones Univ. v. U.S. 
(the government has a compelling interest in not subsidizing 
discrimination, which justifies denying tax exemption to a racially 
discriminatory schools); Taxation With Representation v. Regan (special 
tax exemption for veteran's groups that lets them, but not other 
tax-exempt groups, lobby is permissible under the Free Speech Clause 
because it's just a subsidy to those groups).  Economists likewise tell us 
that they are.

If this is so, then it seems to me that either (1) religious institutions 
*must* be denied tax exemptions under the Establishment Clause, because 
they are legally allowed to discriminate based on religion and because 
they often do so discriminate, or (2) religious institutions *need not* be 
denied the ability to participate in generally available aid programs (at 
least ones in which the money is distributed based on objective criteria) 
even if they discriminate, since those programs are just like tax 
exemptions.  (This intentionally doesn't speak to whether the First 
Amendment *requires* that religiously discriminatory organizations be 
included in the programs, only to whether it *forbids* such inclusion.)

Now perhaps, as Marty suggests, the answer is indeed different when the 
aid program (unlike exemption programs) is administered pursuant to 
subjective criteria rather than objective ones.  But if the government 
pays for the cost of all school bus service, lets schools hire their own 
drivers, and doesn't object when religious schools hire based on religion, 
then it strikes me as quite similar to the government giving a tax 
exemption to all donors to charitable causes, and doesn't object when 
religious recipients of the donations hire based on religion.

Eugene
-Original Message-
From: [EMAIL PROTECTED] 
[mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman
Sent: Thursday, December 23, 2004 12:03 PM
To: Law & Religion issues for Law Academics
Subject: Re: charitable choice hypothetical

A complicated question, I think, Alan.  I assume, in your hypo, that the 
state is simply paying for the cost of bus service, right? -- not actually 
providing the service through the auspices of a state-run transporation 
outfit.  Because if the bus driver were actually an employee of the state, 
obviously the state could not limit its employment decisions to persons of 
a particular religion.  See Torcaso; McDaniel; article VI, etc.  Nor could 
the state cede the power to religious institutions to cabin the state's 
own choices of whom to employ (Larkin).

So let's assume a program of direct payment to private schools for the 
costs of providing bus service.  Under current doctrine (which might not 
be for long for this world), the dollars could not be expended on 
"specifically" religious activity, such as proselytizing, bible studies or 
prayer.  (Bowen v. Kendrick; Tilton; SOC's opinion in Michell v. 
Helms.)  The question, then, would be why such dollars could be used for 
discriminatory hiring practices -- i.e., why coreligionist hiring is 
constitutionally distinct in this cotext from prayer, bible studies, etc., 
even though the Religion Clause would prohibit the state itself from 
engaging in both forms of activity "directly."  But in order to answer 
that question, one would need a fuller, richer account of why direct aid 
provided to all schools (e.g., on a per capita basis) cannot be used for 
certain religious activity.  Unfortunately, all we know, as of now, is 
that according to Justice O'Connor, "the most important reason for 
according special treatment to direct money grants is that this form of 
aid falls precariously close to the original object of the Establishment 
Clause's prohibition."  Not much to go on in that cryptic statement.

I would note, however, that on the Burger Court, even the 
anti-separationist Justices thought there was a serious problem in 
provid

Re: Are the Ten Commandments the foundation ofthe Anglo-Americanlegal system?

[Paul Finkelman]

I will not get into these many complicated issues now, but address the 
strictly legal one:  the Emancipation Proclamation. It was a brilliant 
piece of legal work, authorizing the emancipation of millions of slaves 
as soon as the United States Army could get to them.  Since he had NO 
POWER, none at all, to free slaves in the loyal slave states, it would 
have made no sense for the E.P. to apply to those places.  He signed 
laws ending slavery in DC (where Congress had power to act); he urged 
representatives from KY to end slavery there, and he used his power as 
Commander-in-chief to end slavery in all places then in rebellion. As a 
result, Sherman's march to the sea became the greatest act of human 
liberation in history (at least before World War II). Every time the US 
Army moved further into the South, thousands of slaves were instantly 
freed.  You ask note he "did not free any slaves that the Union had the 
power to liberate," but of course he did. The Union had the power to 
liberate most of the slaves in the South, and over the next 16 months it 
did so.  Do you have some constitutional theory of how Lincoln had the 
power to end slavery in Missouri or Kentucky or Maryland or Delaware? 
Certainly no one in the Lincoln administration has such a theory, even 
the life long abolitionist lawyer Salmon P. Chase could not come up with 
a constitutional theory on how to end slavery in the four loyal slave 
states.

Newsom Michael wrote:
I agree that we should probably take this discussion off list.  However,
how do you account for his put-down of Black leaders near the end of his
Presidency?  (He "invited" them to the White House in order to denigrate
their views on race matters, and otherwise dress them down.) How do you
account for his well-known views that Blacks were inferior?  How do you
account for the fact that the Emancipation Proclamation did not free any
slaves that the Union had the power to liberate?  And how do you account
for the fact that Black people today think little of, or about, Lincoln?
Lincoln wanted to save the Union.  He did not set out to free the
slaves, and, in any event, some very bad men might see some tactical
advantage in freeing slaves (but nonetheless also enforcing a cruel
peonage in place of the Peculiar Institution).
Lincoln was a bad man, so were a lot of other people.  The latter fact
does not detract from the former.  In relative terms, at least, I find
much more to respect and admire in the Abolitionists, particularly the
more radical ones who dared to think about the central issue of
redistributive justice.  Some of their progeny kept the faith, and
played an important role in the founding of the NAACP, for example.
Lincoln had little to nothing to do with the real defenders of racial
justice in America. 

-Original Message-
From: Paul Finkelman [mailto:[EMAIL PROTECTED] 
Sent: Thursday, December 23, 2004 3:37 PM
To: Law & Religion issues for Law Academics
Subject: Re: Are the Ten Commandments the foundation ofthe
Anglo-Americanlegal system?

I suspect that Lincoln's extremely complicated views on race, and his 
actual policies towards blacks are well beyond the scope of this list 
serve.  I will simply point out that Lincoln was the first president to 
invite a black man into the White House, the first President to ask for 
the advice of a black, the first President endorse blacks as officers in

the military, the first President to invite a black to his inauguration 
and to greet him in public as his friend, the first President to endorse

black male suffrage, and I believe the first President to appoint a 
black to public office. Given the racial attitudes of most white 
American at the time, it is pretty hard to argue that Lincoln was "a bad

man."  It would have been nice if all presidents before Lincoln (and 
most after) were equally "bad."

Newsom Michael wrote:
Paul, you give Lincoln far too much credit, I fear.  Take a look at
his
relations with African-Americans, his condescension, and worse.  On
the
subject of race, he was a bad man, pure and simple.
-Original Message-
From: Paul Finkelman [mailto:[EMAIL PROTECTED] 
Sent: Monday, December 20, 2004 10:51 PM
To: Law & Religion issues for Law Academics
Subject: Re: Are the Ten Commandments the foundation ofthe
Anglo-Americanlegal system?

... Lincoln resurrected the promise of the D of I at 
Gettysburg and in his five years as President.  ...
___
To post, send message to Religionlaw@lists.ucla.edu
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or wrongly) forward the messages to others.


--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa Col

Re: charitable choice hypothetical

[A.E. Brownstein]

Thanks for a thoughtful response, Marty. But in fact I am asking a version 
of the more extreme question that you presume is answered by the case law. 
In my hypo, the state is providing the bus service. There are two subsets 
of the question. One involves the religious institution being given a 
choice among existing state employees of who is assigned to the job of bus 
driver (if no one of the appropriate faith is currently employed by the 
state, the accommodation can not be provided.)  The other involves the 
state taking the religious institution's accommodation needs into account 
in making hiring decisions. I don't think either Torcaso or Larkin control 
the first question. Indeed, it is not entirely clear to me that either 
Article VI or Larkin control the second situation. The accommodation here 
is available to all religious schools so the state is not denying all 
employment to persons of a particular religion. Obviously, there will be 
more job opportunities for members of larger faiths than smaller faiths. 
But is that really a prohibited religious test for office. I assume that 
there are more Protestant Ministers hired as Army Chaplains than Rabbis 
(because there are more Protestant than Jewish soldiers) but I don't think 
that violates Article VI.

The Larkin analogy is stronger. But it turns on what constitutes a 
delegation of power. It might not be hard to structure the accommodation to 
avoid that constraint. There is also the question of why giving a religious 
institution capital, real property, or materials that may be used in a 
religiously discriminatory way is substantively different than giving them 
a state paid employment position for delegation purposes. I do not suggest 
that there may not be persuasive answers to these questions, but they may 
not be as self evident as you suggest.

Marty, may I assume from your answer that you agree that Article VI and 
Larkin aside, there is no conventional Establishment Clause basis for 
objecting to my hypotheticals.

Alan Brownstein
UC Davis
At 03:03 PM 12/23/2004 -0500, you wrote:
A complicated question, I think, Alan.  I assume, in your hypo, that the 
state is simply paying for the cost of bus service, right? -- not actually 
providing the service through the auspices of a state-run transporation 
outfit.  Because if the bus driver were actually an employee of the state, 
obviously the state could not limit its employment decisions to persons of 
a particular religion.  See Torcaso; McDaniel; article VI, etc.  Nor could 
the state cede the power to religious institutions to cabin the state's 
own choices of whom to employ (Larkin).

So let's assume a program of direct payment to private schools for the 
costs of providing bus service.  Under current doctrine (which might not 
be for long for this world), the dollars could not be expended on 
"specifically" religious activity, such as proselytizing, bible studies or 
prayer.  (Bowen v. Kendrick; Tilton; SOC's opinion in Michell v. 
Helms.)  The question, then, would be why such dollars could be used for 
discriminatory hiring practices -- i.e., why coreligionist hiring is 
constitutionally distinct in this cotext from prayer, bible studies, etc., 
even though the Religion Clause would prohibit the state itself from 
engaging in both forms of activity "directly."  But in order to answer 
that question, one would need a fuller, richer account of why direct aid 
provided to all schools (e.g., on a per capita basis) cannot be used for 
certain religious activity.  Unfortunately, all we know, as of now, is 
that according to Justice O'Connor, "the most important reason for 
according special treatment to direct money grants is that this form of 
aid falls precariously close to the original object of the Establishment 
Clause's prohibition."  Not much to go on in that cryptic statement.

I would note, however, that on the Burger Court, even the 
anti-separationist Justices thought there was a serious problem in 
providing funds to schools that discriminate on the basis of religion.  In 
his dissent in Lemon, for instance, Justice White acknowledged that an aid 
program (e.g., for teacher salaries) would be unconstitutional to the 
extent there were evidence that the recipient schools restricted entry on 
racial or religious grounds, or required all students to receive 
instruction in the tenets of a particular faith.  403 U.S. at 671 
n.2.  The Court cited with apparent favor to this footnote in Norwood, 413 
U.S. at 464 n.7.  I suppose one could argue that discriminating against 
students is more problematic than discriminating against employees, 
because students are the "ultimate" beneficiaries of the aid program. But 
then again, it's the employees, not the students, who actually receive the 
government dollars.

The basic question, I suppose, is whether the government violates the 
Constitution by giving money to an entity knowing that the state moneys 
will be used to engage in a for

RE: Tax subsidies vs. non-tax subsidies

[Volokh, Eugene]

Title: Message



    I appreciate Marty's point about existing 
doctrine, which is indeed incoherent for some of the reasons he points 
out.  But let's say the program was set up as a voucher program, and thus 
governed by Zelman:  Parents were given bus vouchers that could be redeemed 
with any school bus company.  Would that be at all distinguishable from tax 
exemptions, given that we're out of the rubric of Tilton/Bowen/Helms and under 
Zelman?  I realize that in Zelman there was an antidiscrimination rule 
imposed by the state program, and that the Court didn't confront the 
discrimination question.  But it doesn't seem to me that it would be 
sensible for the Court to treat private choice vouchers differently from private 
choice charitable tax exemptions (which are really matching funds provided by 
the government).
 
    Also, it seems to me that under the O'Connor concurrence in 
Mitchell as well as the plurality in Mitchell, even a direct-aid bus subsidy 
program would be constitutional (unless people were being taught religion while 
on the bus).  If that's so, then why doesn't the analogy to permissible 
religious discrimination by recipients of tax exemptions apply here?  Both 
generally available tax exemptions and generally available bus subsidies don't 
violate the Establishment Clause as such.  Generally available tax 
exemptions don't violate the Establishment Clause even when they end up 
subsidizing religious institutions that discriminate based on religion in 
hiring.  Why wouldn't the result be the same for bus subsidies that end up 
subsidizing religious institutions that discriminate based on religion in 
hiring?
 
    Finally, I think that a distinction between discretionary and 
objectively defined programs might be sensible, though I'm not sure whether I'd 
ultimately endorse it.  But why should we need to use exemptions vs. 
subsidies as a proxy for that?
 
    Eugene

  
  -Original Message-From: 
  [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
  On Behalf Of Marty LedermanSent: Thursday, December 23, 2004 
  12:54 PMTo: Law & Religion issues for Law 
  AcademicsSubject: Re: Tax subsidies vs. non-tax 
  subsidies
  Well, Eugene is, for the most part, fighting the 
  premise of my answer and (I think) of Alan's question -- namely, that for 
  the time being, as for the past 33+ years, it would be impermissible 
  to provide direct aid financial to religious institutions that could be 
  diverted to religious activities.  I was trying to answer Alan's question 
  within that framework, which has governed the law since well before Eugene and 
  I were in law school.  As my answer suggested, if there is a 
  sea-change on this issue, i.e., if the unanimous decisons in Tilton 
  and Bowen v. Kendrick are 
  overturned and if the implications of the plurality opinion in 
  Mitchell become the law, then Eugene's formal neutrality result in 
  his final paragraph will surely follow, it is true.
   
  As Eugene's post suggests, the Court, 
  rightly or wrongly, has not treated tax exemptions and direct 
  aid alike for purposes of the Establishment Clause, economists be 
  damned.  Eugene quite properly asks why the Court should continue to draw 
  the distinction in this area.  O'Connor's answer -- that "the most 
  important reason for according special treatment to direct money grants is 
  that this form of aid falls precariously close to the original object of the 
  Establishment Clause's prohibition" -- is not terribly satisfying, or 
  illuminating, I agree.
   
  What I'd like to suggest is that the ol' 
  tax-empetion/direct-aid dichotomy that has governed this area of law for 
  some time actually is -- or should be, anyway -- a 
  reflection of, or a proxy for, the discretionary/nondiscretionary distinction 
  that I was suggesting.  And here we come to Justice Harlan's 
  long-forgotten and unjustly-ignored concurrence in Walz.  Harlan 
  agreed with you, Eugene, and with Justice Douglas, that "exemptions do not differ from subsidies as an economic 
  matter."   397 U.S. at 698.  Nevertheless, as a 
  general matter, tax exemptions are neutral, generally applicable, and 
  not subject to discretionary, subjective decisionmaking that could result in 
  religious favoritism -- whereas in general, subsidies are the opposite.  
  As Harlan put it, "Subsidies, unlike exemptions, must be passed on 
  periodically and thus invite more political controversy than exemptions.  
  Moreover, subsidies or direct aid, as a general rule, are granted on the 
  basis of enumerated and more complicated qualifications and frequently involve 
  the state in administration to a higher degree, though to be sure, this 
  is not necessarily the case."  Id. at 699.  Whether or not it makes 
  sense for the Court to erect a bright line separating subsidies and exemptions 
  in order to reflect this general distinction, I think that Harlan was 
  onto something very important -- and long-forg

RE: Are the Ten Commandments the foundation ofthe Anglo-Americanlegal system?

[Newsom Michael]

I agree that we should probably take this discussion off list.  However,
how do you account for his put-down of Black leaders near the end of his
Presidency?  (He "invited" them to the White House in order to denigrate
their views on race matters, and otherwise dress them down.) How do you
account for his well-known views that Blacks were inferior?  How do you
account for the fact that the Emancipation Proclamation did not free any
slaves that the Union had the power to liberate?  And how do you account
for the fact that Black people today think little of, or about, Lincoln?
Lincoln wanted to save the Union.  He did not set out to free the
slaves, and, in any event, some very bad men might see some tactical
advantage in freeing slaves (but nonetheless also enforcing a cruel
peonage in place of the Peculiar Institution).

Lincoln was a bad man, so were a lot of other people.  The latter fact
does not detract from the former.  In relative terms, at least, I find
much more to respect and admire in the Abolitionists, particularly the
more radical ones who dared to think about the central issue of
redistributive justice.  Some of their progeny kept the faith, and
played an important role in the founding of the NAACP, for example.
Lincoln had little to nothing to do with the real defenders of racial
justice in America. 

-Original Message-
From: Paul Finkelman [mailto:[EMAIL PROTECTED] 
Sent: Thursday, December 23, 2004 3:37 PM
To: Law & Religion issues for Law Academics
Subject: Re: Are the Ten Commandments the foundation ofthe
Anglo-Americanlegal system?

I suspect that Lincoln's extremely complicated views on race, and his 
actual policies towards blacks are well beyond the scope of this list 
serve.  I will simply point out that Lincoln was the first president to 
invite a black man into the White House, the first President to ask for 
the advice of a black, the first President endorse blacks as officers in

the military, the first President to invite a black to his inauguration 
and to greet him in public as his friend, the first President to endorse

black male suffrage, and I believe the first President to appoint a 
black to public office. Given the racial attitudes of most white 
American at the time, it is pretty hard to argue that Lincoln was "a bad

man."  It would have been nice if all presidents before Lincoln (and 
most after) were equally "bad."

Newsom Michael wrote:
> Paul, you give Lincoln far too much credit, I fear.  Take a look at
his
> relations with African-Americans, his condescension, and worse.  On
the
> subject of race, he was a bad man, pure and simple.
> 
> -Original Message-
> From: Paul Finkelman [mailto:[EMAIL PROTECTED] 
> Sent: Monday, December 20, 2004 10:51 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: Are the Ten Commandments the foundation ofthe
> Anglo-Americanlegal system?
> 
> 
> ... Lincoln resurrected the promise of the D of I at 
> Gettysburg and in his five years as President.  ...
> ___
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
> 
> Please note that messages sent to this large list cannot be viewed as
private.  Anyone can subscribe to the list and read messages that are
posted; people can read the Web archives; and list members can (rightly
or wrongly) forward the messages to others.


-- 
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499

918-631-3706 (office)
918-631-2194 (fax)

[EMAIL PROTECTED]

___
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Re: charitable choice hypothetical

[Marty Lederman]

Thanks for the links, Mark.  I'm sure that many of us will have 
disagreements with some of the substance of the book, but I can say right 
away and without reservation that the appendices alone make it well worth 
one's time and paper-costs to download if you're at all interested in this 
issue.  I used this site:

http://www.lo.redjupiter.com/gems/cpj/religiousstaffing.pdf
- Original Message - 
From: "Scarberry, Mark" <[EMAIL PROTECTED]>
To: "'Law & Religion issues for Law Academics'" 
Sent: Thursday, December 23, 2004 3:29 PM
Subject: RE: charitable choice hypothetical


On the general issue of charitable choice and hiring of co-religionists,
list members may be interested in a book just published by the Center for
Public Justice: Esbeck, Carlson-Thies and Sider, The Freedom of 
Faith-Based
Organizations To Staff on a Religious Basis. I have no connection with the
book other than that I just received a free copy. A notice that came with
the book says that copies can be obtained (for a charge) by calling
1-800-650-6600 and that a free pdf version is available at several 
websites:
www.cpjustice.org, www.esa-online.org, and www.clsnet.org.

Mark S. Scarberry
Pepperdine University School of Law
-Original Message-
From: A.E. Brownstein [mailto:[EMAIL PROTECTED]
Sent: Thursday, December 23, 2004 11:25 AM
To: Law & Religion issues for Law Academics
Subject: charitable choice hypothetical
In reading arguments defending charitable choice provisions that permit
religious non-governmental providers to discriminate on the basis of
religion in hiring employees to staff government funded programs serving
public purposes -- even if the program is entirely supported by government
funds and is subject to various government regulations and conditions, I
began to think about the reach of these arguments.
Proponents of discriminatory hiring argue:
1. This is an accommodation of the religious liberty interest of religious
individuals to work together with co-religionists.
2. The accommodation serves the legitimate secular purpose of permitting
co-religionists to work together.
3. The accommodation does not impermissibly advance religion. The reason
religion is not impermissibly advanced is, in part, because
a. The discrimination is not invidious and the persons denied job
opportunities are not stigmatized by their exclusion from these job
opportunities.
b. The religious liberty of persons denied employment because of
their
religious beliefs is not burdened by being denied tax payer funded, public
purpose employment opportunities.
Obviously, I strongly disagree with most of these arguments. But my
question is this. Suppose a state provides free school bus service to
students attending both private and public schools. May the state allow
religious private schools to select the bus driver transporting their
students to the school and insist that the driver must be of the same 
faith
as the school's teachers and administrators -- and may the state grant 
such
requests as an accommodation? (Or alternatively, when public school
teachers are assigned to provide remedial services to students at a
religious school, may religious schools be granted the accommodation of
choosing teachers of a particular faith to be assigned to those duties.)

Wouldn't all of the above arguments apply to these situation? The 
religious
discrimination would be an accommodation of religious individuals desire 
to
work with co-religionists. (And., of course, the state can take religion
into account in accommodating religion.) The accommodation would serve a
secular purpose and not impermissibly advance religion for all of the
reasons argued above.

If there is an Establishment Clause problem with these hypothetical
accommodations, what is it? It can't be that public resources (here labor
instead of capital) are placed under the control of religious institutions
which practice religious discrimination in using those resources --  
because
that is what charitable choice does.

Alan Brownstein
UC Davis
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Re: Tax subsidies vs. non-tax subsidies

[Marty Lederman]

Title: Message



Well, Eugene is, for the most part, fighting the 
premise of my answer and (I think) of Alan's question -- namely, that for 
the time being, as for the past 33+ years, it would be impermissible to 
provide direct aid financial to religious institutions that could be diverted to 
religious activities.  I was trying to answer Alan's question within that 
framework, which has governed the law since well before Eugene and I were in law 
school.  As my answer suggested, if there is a sea-change on this 
issue, i.e., if the unanimous decisons in Tilton and Bowen v. 
Kendrick are overturned and if the 
implications of the plurality opinion in Mitchell become the 
law, then Eugene's formal neutrality result in his final paragraph will surely 
follow, it is true.
 
As Eugene's post suggests, the Court, rightly 
or wrongly, has not treated tax exemptions and direct aid alike 
for purposes of the Establishment Clause, economists be damned.  Eugene 
quite properly asks why the Court should continue to draw the distinction in 
this area.  O'Connor's answer -- that "the most important reason for 
according special treatment to direct money grants is that this form of aid 
falls precariously close to the original object of the Establishment Clause's 
prohibition" -- is not terribly satisfying, or illuminating, I 
agree.
 
What I'd like to suggest is that the ol' 
tax-empetion/direct-aid dichotomy that has governed this area of law for 
some time actually is -- or should be, anyway -- a 
reflection of, or a proxy for, the discretionary/nondiscretionary distinction 
that I was suggesting.  And here we come to Justice Harlan's long-forgotten 
and unjustly-ignored concurrence in Walz.  Harlan agreed with you, 
Eugene, and with Justice Douglas, that "exemptions do not differ from subsidies as an economic 
matter."   397 U.S. at 698.  Nevertheless, as a general 
matter, tax exemptions are neutral, generally applicable, and not subject 
to discretionary, subjective decisionmaking that could result in religious 
favoritism -- whereas in general, subsidies are the opposite.  As Harlan 
put it, "Subsidies, unlike exemptions, must be passed on periodically and thus 
invite more political controversy than exemptions.  Moreover, subsidies or 
direct aid, as a general rule, are granted on the basis of enumerated and 
more complicated qualifications and frequently involve the state in 
administration to a higher degree, though to be sure, this is not 
necessarily the case."  Id. at 699.  Whether or not it makes sense for 
the Court to erect a bright line separating subsidies and exemptions in order to 
reflect this general distinction, I think that Harlan was onto 
something very important -- and long-forgotten -- namely, that "the 
more discriminating and complicated the basis of classification," and "the 
greater the potential for state involvement in evaluating the character of the 
organizations" [in Walz, for an exemption; in charitable choice, 
for funding], the greater the risk of constitutional problems.
 
But again, I believe that Alan was assuming that 
the law on direct funding as we've known it since at least 1971 will continue to 
be the law -- at least as long as SOC is on the Court -- and was asking why 
direct aid, if it cannot be diverted to religious 
activity, can be used to discriminate on the basis of 
religion in employment.  And that is, I think, a very interesting and 
difficult question. 
 
 

  - Original Message - 
  From: 
  Volokh, 
  Eugene 
  To: Law & Religion issues for Law 
  Academics 
  Sent: Thursday, December 23, 2004 3:21 
  PM
  Subject: Tax subsidies vs. non-tax 
  subsidies
  
  It seems to 
  me that this brings up the old question of the extent to which tax exemptions 
  are effectively subsidies.  The Court has generally held that they are, 
  see, e.g., Texas Monthly v. Bullock (religion-preferential tax exemption 
  violates the Establishment Clause); Bob Jones Univ. v. U.S. (the government 
  has a compelling interest in not subsidizing discrimination, which justifies 
  denying tax exemption to a racially discriminatory schools); Taxation With 
  Representation v. Regan (special tax exemption for veteran's groups that lets 
  them, but not other tax-exempt groups, lobby is permissible under the Free 
  Speech Clause because it's just a subsidy to those groups).  Economists 
  likewise tell us that they are.
   
  If this is 
  so, then it seems to me that either (1) religious institutions *must* be 
  denied tax exemptions under the Establishment Clause, because they are legally 
  allowed to discriminate based on religion and because they often do so 
  discriminate, or (2) religious institutions *need not* be denied the ability 
  to participate in generally available aid programs (at least ones in which the 
  money is distributed based on objective criteria) even if they discriminate, 
  since those programs are just like tax exemptions.  (This intentionally

Re: charitable choice hypothetical

[Steven Green]

Putting aside any state nondiscrimination statutes or collective 
bargaining issues which would control the situation, the permissive 
accommodation and nonestablishment issues need to be addressed separately.

If one follows Texas Monthly, Thorton and even Amos, it seems that the 
permissive accommodation would fail because: (1) the need to hire 
coreligionist bus drivers does not appear to be based on a free exercise 
 burden or come close to the concern in Amos about a chilling impact on 
the autonomy & decisionmaking of the religious entity; and (2) that such 
preference burdens other persons (non-religious bus drivers in need of a 
job).

However, I would acknowledge that the absence of a ground for 
accommodating does not necessarily equate with an impermissible 
advancement of religion.  But I think Alan's characterization of the 
issue (placing labor under the control of a religious entity) is too 
broad.  While charitable choice does such, it is with the facial 
assertion that those employees are not engaging in religious activity or 
engaged in religious functions but are providing surrogate public 
services.  While the same may be true for the bus driver (is there a 
Christian way to drive?), in both situations the ability to discriminate 
enables the religious organizations' overall mission by ensuring a 
community of like believers at the government's expense.  At least under 
 Title VII the government is not funding the private discrimination.

Steve
--
Steven K. Green, J.D., Ph.D.
Associate Professor
Director, Center for Law and Government
Willamette University College of Law
245 Winter St., SE
Salem, OR 97301
503-370-6732
A.E. Brownstein wrote:
In reading arguments defending charitable choice provisions that permit 
religious non-governmental providers to discriminate on the basis of 
religion in hiring employees to staff government funded programs serving 
public purposes -- even if the program is entirely supported by 
government funds and is subject to various government regulations and 
conditions, I began to think about the reach of these arguments.

Proponents of discriminatory hiring argue:
1. This is an accommodation of the religious liberty interest of 
religious individuals to work together with co-religionists.

2. The accommodation serves the legitimate secular purpose of permitting 
co-religionists to work together.

3. The accommodation does not impermissibly advance religion. The reason 
religion is not impermissibly advanced is, in part, because

a. The discrimination is not invidious and the persons denied job 
opportunities are not stigmatized by their exclusion from these job 
opportunities.

b. The religious liberty of persons denied employment because of 
their religious beliefs is not burdened by being denied tax payer 
funded, public purpose employment opportunities.

Obviously, I strongly disagree with most of these arguments. But my 
question is this. Suppose a state provides free school bus service to 
students attending both private and public schools. May the state allow 
religious private schools to select the bus driver transporting their 
students to the school and insist that the driver must be of the same 
faith as the school's teachers and administrators -- and may the state 
grant such requests as an accommodation? (Or alternatively, when public 
school teachers are assigned to provide remedial services to students at 
a religious school, may religious schools be granted the accommodation 
of choosing teachers of a particular faith to be assigned to those duties.)

Wouldn't all of the above arguments apply to these situation? The 
religious discrimination would be an accommodation of religious 
individuals desire to work with co-religionists. (And., of course, the 
state can take religion into account in accommodating religion.) The 
accommodation would serve a secular purpose and not impermissibly 
advance religion for all of the reasons argued above.

If there is an Establishment Clause problem with these hypothetical 
accommodations, what is it? It can't be that public resources (here 
labor instead of capital) are placed under the control of religious 
institutions which practice religious discrimination in using those 
resources -- because that is what charitable choice does.

Alan Brownstein
UC Davis
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http

Re: Are the Ten Commandments the foundation ofthe Anglo-Americanlegal system?

[Paul Finkelman]

I suspect that Lincoln's extremely complicated views on race, and his 
actual policies towards blacks are well beyond the scope of this list 
serve.  I will simply point out that Lincoln was the first president to 
invite a black man into the White House, the first President to ask for 
the advice of a black, the first President endorse blacks as officers in 
the military, the first President to invite a black to his inauguration 
and to greet him in public as his friend, the first President to endorse 
black male suffrage, and I believe the first President to appoint a 
black to public office. Given the racial attitudes of most white 
American at the time, it is pretty hard to argue that Lincoln was "a bad 
man."  It would have been nice if all presidents before Lincoln (and 
most after) were equally "bad."

Newsom Michael wrote:
Paul, you give Lincoln far too much credit, I fear.  Take a look at his
relations with African-Americans, his condescension, and worse.  On the
subject of race, he was a bad man, pure and simple.
-Original Message-
From: Paul Finkelman [mailto:[EMAIL PROTECTED] 
Sent: Monday, December 20, 2004 10:51 PM
To: Law & Religion issues for Law Academics
Subject: Re: Are the Ten Commandments the foundation ofthe
Anglo-Americanlegal system?

... Lincoln resurrected the promise of the D of I at 
Gettysburg and in his five years as President.  ...
___
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Please note that messages sent to this large list cannot be viewed as private.  Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.

--
Paul Finkelman
Chapman Distinguished Professor
University of Tulsa College of Law
3120 East 4th Place
Tulsa, Oklahoma  74104-2499
918-631-3706 (office)
918-631-2194 (fax)
[EMAIL PROTECTED]
___
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To subscribe, unsubscribe, change options, or get password, see 
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RE: charitable choice hypothetical

[Scarberry, Mark]

On the general issue of charitable choice and hiring of co-religionists,
list members may be interested in a book just published by the Center for
Public Justice: Esbeck, Carlson-Thies and Sider, The Freedom of Faith-Based
Organizations To Staff on a Religious Basis. I have no connection with the
book other than that I just received a free copy. A notice that came with
the book says that copies can be obtained (for a charge) by calling
1-800-650-6600 and that a free pdf version is available at several websites:
www.cpjustice.org, www.esa-online.org, and www.clsnet.org. 

Mark S. Scarberry
Pepperdine University School of Law
 

-Original Message-
From: A.E. Brownstein [mailto:[EMAIL PROTECTED] 
Sent: Thursday, December 23, 2004 11:25 AM
To: Law & Religion issues for Law Academics
Subject: charitable choice hypothetical

In reading arguments defending charitable choice provisions that permit 
religious non-governmental providers to discriminate on the basis of 
religion in hiring employees to staff government funded programs serving 
public purposes -- even if the program is entirely supported by government 
funds and is subject to various government regulations and conditions, I 
began to think about the reach of these arguments.

Proponents of discriminatory hiring argue:

1. This is an accommodation of the religious liberty interest of religious 
individuals to work together with co-religionists.

2. The accommodation serves the legitimate secular purpose of permitting 
co-religionists to work together.

3. The accommodation does not impermissibly advance religion. The reason 
religion is not impermissibly advanced is, in part, because

a. The discrimination is not invidious and the persons denied job 
opportunities are not stigmatized by their exclusion from these job 
opportunities.

b. The religious liberty of persons denied employment because of
their 
religious beliefs is not burdened by being denied tax payer funded, public 
purpose employment opportunities.

Obviously, I strongly disagree with most of these arguments. But my 
question is this. Suppose a state provides free school bus service to 
students attending both private and public schools. May the state allow 
religious private schools to select the bus driver transporting their 
students to the school and insist that the driver must be of the same faith 
as the school's teachers and administrators -- and may the state grant such 
requests as an accommodation? (Or alternatively, when public school 
teachers are assigned to provide remedial services to students at a 
religious school, may religious schools be granted the accommodation of 
choosing teachers of a particular faith to be assigned to those duties.)

Wouldn't all of the above arguments apply to these situation? The religious 
discrimination would be an accommodation of religious individuals desire to 
work with co-religionists. (And., of course, the state can take religion 
into account in accommodating religion.) The accommodation would serve a 
secular purpose and not impermissibly advance religion for all of the 
reasons argued above.

If there is an Establishment Clause problem with these hypothetical 
accommodations, what is it? It can't be that public resources (here labor 
instead of capital) are placed under the control of religious institutions 
which practice religious discrimination in using those resources -- because 
that is what charitable choice does.

Alan Brownstein
UC Davis

___
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To subscribe, unsubscribe, change options, or get password, see
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posted; people can read the Web archives; and list members can (rightly or
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___
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Anyone can subscribe to the list and read messages that are posted; people can 
read the Web archives; and list members can (rightly or wrongly) forward the 
messages to others.

Tax subsidies vs. non-tax subsidies

[Volokh, Eugene]

Title: Message



It seems to 
me that this brings up the old question of the extent to which tax exemptions 
are effectively subsidies.  The Court has generally held that they are, 
see, e.g., Texas Monthly v. Bullock (religion-preferential tax exemption 
violates the Establishment Clause); Bob Jones Univ. v. U.S. (the government has 
a compelling interest in not subsidizing discrimination, which justifies denying 
tax exemption to a racially discriminatory schools); Taxation With 
Representation v. Regan (special tax exemption for veteran's groups that lets 
them, but not other tax-exempt groups, lobby is permissible under the Free 
Speech Clause because it's just a subsidy to those groups).  Economists 
likewise tell us that they are.
 
If this is 
so, then it seems to me that either (1) religious institutions *must* be denied 
tax exemptions under the Establishment Clause, because they are legally allowed 
to discriminate based on religion and because they often do so discriminate, or 
(2) religious institutions *need not* be denied the ability to participate in 
generally available aid programs (at least ones in which the money is 
distributed based on objective criteria) even if they discriminate, since those 
programs are just like tax exemptions.  (This intentionally doesn't speak 
to whether the First Amendment *requires* that religiously discriminatory 
organizations be included in the programs, only to whether it *forbids* such 
inclusion.)
 
Now perhaps, 
as Marty suggests, the answer is indeed different when the aid program (unlike 
exemption programs) is administered pursuant to subjective criteria rather than 
objective ones.  But if the government pays for the cost of all school bus 
service, lets schools hire their own drivers, and doesn't object when religious 
schools hire based on religion, then it strikes me as quite similar to the 
government giving a tax exemption to all donors to charitable causes, and 
doesn't object when religious recipients of the donations hire based on 
religion.
 
Eugene
 

-Original Message-From: 
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] 
On Behalf Of Marty LedermanSent: Thursday, December 23, 2004 
12:03 PMTo: Law & Religion issues for Law 
AcademicsSubject: Re: charitable choice 
hypothetical

  A complicated question, I think, Alan.  I 
  assume, in your hypo, that the state is simply paying for the cost of 
  bus service, right? -- not actually providing the service 
  through the auspices of a state-run transporation outfit.  Because if the 
  bus driver were actually an employee of the state, obviously the 
  state could not limit its employment decisions to persons of a particular 
  religion.  See Torcaso; McDaniel; article VI, 
  etc.  Nor could the state cede the power to religious institutions to 
  cabin the state's own choices of whom to employ 
(Larkin).
   
  So let's assume a program of direct payment to 
  private schools for the costs of providing bus service.  Under current 
  doctrine (which might not be for long for this world), the dollars could not 
  be expended on "specifically" religious activity, such as proselytizing, bible 
  studies or prayer.  (Bowen v. Kendrick; 
  Tilton; SOC's opinion in Michell v. 
  Helms.)  The question, then, would be why such dollars 
  could be used for discriminatory hiring practices -- i.e., why 
  coreligionist hiring is constitutionally distinct in this cotext from prayer, 
  bible studies, etc., even though the Religion Clause would prohibit the state 
  itself from engaging in both forms of activity "directly."  But 
  in order to answer that question, one would need a fuller, richer account of 
  why direct aid provided to all schools (e.g., on a per capita 
  basis) cannot be used for certain religious activity.  
  Unfortunately, all we know, as of now, is that according to Justice O'Connor, 
  "the most important reason for according special treatment to direct money 
  grants is that this form of aid falls precariously close to the original 
  object of the Establishment Clause's prohibition."  Not much to go on in 
  that cryptic statement.  
   
  I would note, however, that on the Burger Court, 
  even the anti-separationist Justices thought there was a serious problem in 
  providing funds to schools that discriminate on the basis of religion.  
  In his dissent in Lemon, for instance, Justice White acknowledged 
  that an aid program (e.g., for teacher salaries) would be unconstitutional to 
  the extent there were evidence that the recipient schools restricted entry on 
  racial or religious grounds, or required all students to receive 
  instruction in the tenets of a particular faith.  403 U.S. at 671 
  n.2.  The Court cited with apparent favor to this footnote in 
  Norwood, 413 U.S. at 464 n.7.  I suppose one could argue that 
  discriminating against students is more problematic than 
  discriminating against employees, because students are the "ultimate" 
  beneficiari

Re: charitable choice hypothetical

[Marty Lederman]

A complicated question, I think, Alan.  I 
assume, in your hypo, that the state is simply paying for the cost of 
bus service, right? -- not actually providing the service 
through the auspices of a state-run transporation outfit.  Because if the 
bus driver were actually an employee of the state, obviously the state 
could not limit its employment decisions to persons of a particular 
religion.  See Torcaso; McDaniel; article VI, etc.  
Nor could the state cede the power to religious institutions to cabin the 
state's own choices of whom to employ (Larkin).
 
So let's assume a program of direct payment to 
private schools for the costs of providing bus service.  Under current 
doctrine (which might not be for long for this world), the dollars could not be 
expended on "specifically" religious activity, such as proselytizing, bible 
studies or prayer.  (Bowen v. Kendrick; 
Tilton; SOC's opinion in Michell v. 
Helms.)  The question, then, would be why such dollars could 
be used for discriminatory hiring practices -- i.e., why coreligionist hiring is 
constitutionally distinct in this cotext from prayer, bible studies, etc., even 
though the Religion Clause would prohibit the state itself from engaging in 
both forms of activity "directly."  But in order to answer that 
question, one would need a fuller, richer account of why direct aid 
provided to all schools (e.g., on a per capita basis) cannot be 
used for certain religious activity.  Unfortunately, all we know, as of 
now, is that according to Justice O'Connor, "the most important reason for 
according special treatment to direct money grants is that this form of aid 
falls precariously close to the original object of the Establishment Clause's 
prohibition."  Not much to go on in that cryptic statement.  

 
I would note, however, that on the Burger Court, 
even the anti-separationist Justices thought there was a serious problem in 
providing funds to schools that discriminate on the basis of religion.  In 
his dissent in Lemon, for instance, Justice White acknowledged that an 
aid program (e.g., for teacher salaries) would be unconstitutional to the extent 
there were evidence that the recipient schools restricted entry on racial or 
religious grounds, or required all students to receive instruction in the 
tenets of a particular faith.  403 U.S. at 671 n.2.  The Court cited 
with apparent favor to this footnote in Norwood, 413 U.S. at 464 
n.7.  I suppose one could argue that discriminating against 
students is more problematic than discriminating against employees, 
because students are the "ultimate" beneficiaries of the aid program. But then 
again, it's the employees, not the students, who actually receive the government 
dollars. 
 
The basic question, I suppose, is whether the 
government violates the Constitution by giving money to an entity 
knowing that the state moneys will be used to engage in a form of 
discrimination that would be forbidden to the state itself.  I don't know 
that there is a single answer to that question.  In my view, however, the 
constitutional problem is most pronounced where the government aid is 
discretionary and selective, and distributed on the basis of highly 
subjective criteria, because in such a case, it's much more tenable to conclude 
that the government's choice of a discriminating recipient over a 
nondiscriminating recipient evidences at least a modicum of government 
"endorsement" of the discrimination.  That is to say, the government is 
more (constitutionally) responsible for what happens with its funding when in 
the first instance it must make discretionary choices of who should receive that 
funding.  By contrast, I think the constitutional concern is less 
pronounced where the aid is awarded on the basis of objective criteria, or on a 
per capita basis.  But cf. O'Connor's opinion in 
Mitchell.
 
Is that at all responsive?
 
 
- Original Message - 
From: "A.E. Brownstein" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics" 

Sent: Thursday, December 23, 2004 2:24 
PM
Subject: charitable choice 
hypothetical
> In reading arguments defending charitable choice provisions that 
permit > religious non-governmental providers to discriminate on the 
basis of > religion in hiring employees to staff government funded 
programs serving > public purposes -- even if the program is entirely 
supported by government > funds and is subject to various government 
regulations and conditions, I > began to think about the reach of these 
arguments.> > Proponents of discriminatory hiring argue:> 
> 1. This is an accommodation of the religious liberty interest of 
religious > individuals to work together with co-religionists.> 
> 2. The accommodation serves the legitimate secular purpose of 
permitting > co-religionists to work together.> > 3. The 
accommodation does not impermissibly advance religion. The reason > 
religion is not impermissibly advanced is, in pa

charitable choice hypothetical

[A.E. Brownstein]

In reading arguments defending charitable choice provisions that permit 
religious non-governmental providers to discriminate on the basis of 
religion in hiring employees to staff government funded programs serving 
public purposes -- even if the program is entirely supported by government 
funds and is subject to various government regulations and conditions, I 
began to think about the reach of these arguments.

Proponents of discriminatory hiring argue:
1. This is an accommodation of the religious liberty interest of religious 
individuals to work together with co-religionists.

2. The accommodation serves the legitimate secular purpose of permitting 
co-religionists to work together.

3. The accommodation does not impermissibly advance religion. The reason 
religion is not impermissibly advanced is, in part, because

	a. The discrimination is not invidious and the persons denied job 
opportunities are not stigmatized by their exclusion from these job 
opportunities.

	b. The religious liberty of persons denied employment because of their 
religious beliefs is not burdened by being denied tax payer funded, public 
purpose employment opportunities.

Obviously, I strongly disagree with most of these arguments. But my 
question is this. Suppose a state provides free school bus service to 
students attending both private and public schools. May the state allow 
religious private schools to select the bus driver transporting their 
students to the school and insist that the driver must be of the same faith 
as the school's teachers and administrators -- and may the state grant such 
requests as an accommodation? (Or alternatively, when public school 
teachers are assigned to provide remedial services to students at a 
religious school, may religious schools be granted the accommodation of 
choosing teachers of a particular faith to be assigned to those duties.)

Wouldn't all of the above arguments apply to these situation? The religious 
discrimination would be an accommodation of religious individuals desire to 
work with co-religionists. (And., of course, the state can take religion 
into account in accommodating religion.) The accommodation would serve a 
secular purpose and not impermissibly advance religion for all of the 
reasons argued above.

If there is an Establishment Clause problem with these hypothetical 
accommodations, what is it? It can't be that public resources (here labor 
instead of capital) are placed under the control of religious institutions 
which practice religious discrimination in using those resources -- because 
that is what charitable choice does.

Alan Brownstein
UC Davis
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RE: Are the Ten Commandments the foundation ofthe Anglo-Americanlegal system?

[Newsom Michael]

Paul, you give Lincoln far too much credit, I fear.  Take a look at his
relations with African-Americans, his condescension, and worse.  On the
subject of race, he was a bad man, pure and simple.

-Original Message-
From: Paul Finkelman [mailto:[EMAIL PROTECTED] 
Sent: Monday, December 20, 2004 10:51 PM
To: Law & Religion issues for Law Academics
Subject: Re: Are the Ten Commandments the foundation ofthe
Anglo-Americanlegal system?


... Lincoln resurrected the promise of the D of I at 
Gettysburg and in his five years as President.  ...
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RE: Supposedly Deistic nature of the Declaration of Independence

[Newsom Michael]

Take a look at Finke and
Stark’s book, The Churching of America.  It does not give a complete
answer, but it suggests that church membership and attendance was very, very
low at the time of the Founding.  Their thesis is that over time, more and
more Americans have attended church, and they offer up reasons why, largely
having to do with market segmentation.  The problem is whether one could
be a “post-church” Protestant or a “non-church”
Protestant.  There are theological reasons, deeply rooted in the
Protestant Reformation (largely derived from “sola fide” and the
rejection of “Church,” at least as Catholics understand it) for
saying that the answer to both is “yes.”  If one doesn’t
need “church,” because a person can have a personal relation, one
on one, with God, with no need for intermediaries or sacraments, then one could
argue that a good Protestant doesn’t have to go to church, all that he or
she need do is read the Bible regularly. 

 

I think that the answer to your question
lies in trying to figure out the relative ease or difficulty in “churching”
America. 
Or, put differently, how easy or hard is it to get (1) a non-believer in God
and (2) a non-believer, or, perhaps, skeptic about “church,” to go
to church on Sundays (and presumably confess a faith in God, as evangelical Protestants
and other “traditional” Christians understand God).  Did
revivals convert the godless, or did they simply give believers another way of
understanding a pre-existing evangelical Protestant faith.  Finke and
Stark’s thesis, that pluralism in American evangelical Protestantism led
to a situation where there was a “church” for everybody, more or
less, might conceivably (and I am deliberately hedging here) mean that “churching”
was relatively easy rather than relatively hard, and that would in turn suggest
that a large number of Americans were, simply put, non-churchgoing evangelical
Protestants.

 

But one thing seems reasonably clear to me:
most Americans were and are, culturally, theologically, and behaviorally (i.e.
church-going) evangelical Protestants.  It is also the case that very few
Americans were and are Deists or Unitarians or “rationalists.”   It
is true, though that there has been and continues to be a strand of liberalism
in American Protestantism, perhaps a subset of “rationalists.” 
I am not sure how liberal Protestants would speak of God, but I strongly
suspect that they would not use deistic language to describe God. 
So-called Mainstream Protestants are NOT Unitarians.  

 

One final thought on the question.  I
think that I read somewhere, a long time ago, that huge numbers of Americans
had a copy of the Bible, whether they went to church or not.  This, of
course, is consistent with my thesis, such that it is, that large numbers of
Americans have been (and some may continue to be) non-church-going evangelical
Protestants.

 

-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] 
Sent: Monday, December 20, 2004
5:06 PM
To: religionlaw@lists.ucla.edu
Subject: Re: Supposedly Deistic
nature of the Declaration of Independence

 







In a
message dated 12/20/2004 4:47:31 PM Eastern Standard Time, [EMAIL PROTECTED]
writes:





I
inferred that because most Americans of the
era were Christians, the public meaning of the document would have been
understood as referring to the God that they generally believed in.





Has
anyone done the difficult research of trying to ascertain how many people
during the Founding generations actually believed in a God, whether
interventionist or not?  The problem, of course, is when X (a belief in
God, democracy, republicanism) is a cultural imperative it seems enormously
difficult to fashion a research strategy that can ferret out people's real
beliefs (on the assumption that the rhetoric of cultural imperatives often mask
how people actually regard an issue). I suspect such research would be
difficult when the object is contemporary society, let alone a society existing
two hundred years ago. In any event, is there any research purporting to shed
light on whether public references to "God" had in mind (1) a
particular God, (2) a general reference to some God or other, or (3) simply the
recognition that others in society use the term in the first two senses, and
therefore if the reference has rhetorical force why not use it as well to make
an independently justified point.





In
other words, what was the public meaning(s) of the term "God" in the
founding generation?  And is there empirical support for answers to this
question?





 





Bobby





 





Bobby





 





Robert Justin Lipkin
Professor of Law
Widener University School of Law
Delaware








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