RE: Locke v. Davey follow-up
Here are some preliminary thoughts on Eugene's question. Though I think Locke v. Davey was incorrectly decided, it is at least plausible to say that a government education grant that can be used for clergy training involves government in supporting the training of clergy. Because direct government support for religious training -- and especially for the training of clergy -- is a high voltage historical issue that has been controversial since the Founding, the Court allowed Washington to steer clear of it in a way that discriminates against religion. But the notion that a government grant program that is not specifically for education implicates Establishment concerns when the recipient chooses to use the money for some religious purpose does not have historical resonance. Indeed, since it is likely that many people at the time of the Founding tithed (perhaps the historians can tell us whether that is true), the idea would have been outrageous that a recipient of government money (such as the salary of a federal employee or a payment to a federal contractor) could not use some of that money for religious purposes. It would have meant that many religious persons could not have been government employees or contractors. Cf. the prohibition on religious tests for federal office. Since we don't have a high voltage historical Establishment controversy, the usual rule should apply, that discrimination against religious uses of such grants violates the Free Exercise Clause. That is not to say that a grant of money for purchase specifically of food could not contain a condition requiring that it be used only for food; consider the food stamp program. But if the recipient is entitled to use the money for purposes chosen by the recipient, there should be no discrimination against religious purposes. And a fungibility approach -- saying, for example, that no one who gets food stamps can give any money to a church, because money is fungible and it might as well be the government money that is being used -- would similarly discriminate against religion. Can you imagine such a program comprehensively governing the spending of a recipient? No Playboy magazines to be purchased with other money? No concerts? No newspapers? Such regulation would violate other parts of the First Amendment, wouldn't it? Mark Scarberry Pepperdine -Original Message- From: Volokh, Eugene To: Law & Religion issues for Law Academics Sent: 5/2/2005 9:33 PM Subject: RE: Locke v. Davey follow-up I may be mistaken, but I've never heard of AFDC statutes limiting the use of the money to food, shelter, and the like; as best I can tell, recipients are free to spend the money on anything, including education. But since I didn't want to assume anything about the federal AFDC scheme, I asked about a state general relief or disability plan. So let me ask again, though with this point clarified: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits -- which are otherwise usable by the recipient for any other purpose -- may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Paul > Finkelman > Sent: Monday, May 02, 2005 8:34 PM > To: Law & Religion issues for Law Academics > Subject: Re: Locke v. Davey follow-up > > > The question might be how statutes are written. If the > statutes limit > use of money for certain things, then use of the money might be > prohibited for *all* other things, not just religious ecucation; that > would then be a law of general applicability. > > Jean Dudley wrote: > > > Paul Finkelman wrote: > > > >> are welfare payments tied to expected budget expenses -- food, > >> housing, clothing, transportatoin, medical care, etc? > Most welfare > >> is AFDC, and is earmarked for helping children. If mother > uses money > >> for food and housing to pay the church, is that welfare fraud? > >> > >> Paul Finkelman > > > > > > I'd argue that although (some?) welfare funds are ostensibly for the > > child's welfare, it's up to the legal guardian/parent/s to > decide what > > that welfare entails. If they opt to pay membership dues > to a church, > > temple or coven, that is their decision. If the child is > hungry, sick > > and in worn-out clothes as a result, that's a matter for > child welfare > > services. > > Jean Dudley > > > > ___ > > To post, send message to Religionlaw@lists.
RE: Locke v. Davey follow-up
I may be mistaken, but I've never heard of AFDC statutes limiting the use of the money to food, shelter, and the like; as best I can tell, recipients are free to spend the money on anything, including education. But since I didn't want to assume anything about the federal AFDC scheme, I asked about a state general relief or disability plan. So let me ask again, though with this point clarified: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits -- which are otherwise usable by the recipient for any other purpose -- may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Paul > Finkelman > Sent: Monday, May 02, 2005 8:34 PM > To: Law & Religion issues for Law Academics > Subject: Re: Locke v. Davey follow-up > > > The question might be how statutes are written. If the > statutes limit > use of money for certain things, then use of the money might be > prohibited for *all* other things, not just religious ecucation; that > would then be a law of general applicability. > > Jean Dudley wrote: > > > Paul Finkelman wrote: > > > >> are welfare payments tied to expected budget expenses -- food, > >> housing, clothing, transportatoin, medical care, etc? > Most welfare > >> is AFDC, and is earmarked for helping children. If mother > uses money > >> for food and housing to pay the church, is that welfare fraud? > >> > >> Paul Finkelman > > > > > > I'd argue that although (some?) welfare funds are ostensibly for the > > child's welfare, it's up to the legal guardian/parent/s to > decide what > > that welfare entails. If they opt to pay membership dues > to a church, > > temple or coven, that is their decision. If the child is > hungry, sick > > and in worn-out clothes as a result, that's a matter for > child welfare > > services. > > Jean Dudley > > > > ___ > > 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 of Law > University of Tulsa College of Law > 3120 East 4th Place > Tulsa, OK 74104-3189 > > 918-631-3706 (office) > 918-631-2194 (fax) > > [EMAIL PROTECTED] > > > > ___ > To post, send message to Religionlaw@lists.ucla.edu > To subscribe, unsubscribe, change options, or get password, > see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > > Please note that messages sent to this large list cannot be > viewed as private. Anyone can subscribe to the list and read > messages that are posted; people can read the Web archives; > and list members can (rightly or wrongly) forward the > messages to others. > ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Locke v. Davey follow-up
The question might be how statutes are written. If the statutes limit use of money for certain things, then use of the money might be prohibited for *all* other things, not just religious ecucation; that would then be a law of general applicability. Jean Dudley wrote: Paul Finkelman wrote: are welfare payments tied to expected budget expenses -- food, housing, clothing, transportatoin, medical care, etc? Most welfare is AFDC, and is earmarked for helping children. If mother uses money for food and housing to pay the church, is that welfare fraud? Paul Finkelman I'd argue that although (some?) welfare funds are ostensibly for the child's welfare, it's up to the legal guardian/parent/s to decide what that welfare entails. If they opt to pay membership dues to a church, temple or coven, that is their decision. If the child is hungry, sick and in worn-out clothes as a result, that's a matter for child welfare services. Jean Dudley ___ 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 of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] ___ 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.
Re: Locke v. Davey follow-up
Paul Finkelman wrote: are welfare payments tied to expected budget expenses -- food, housing, clothing, transportatoin, medical care, etc? Most welfare is AFDC, and is earmarked for helping children. If mother uses money for food and housing to pay the church, is that welfare fraud? Paul Finkelman I'd argue that although (some?) welfare funds are ostensibly for the child's welfare, it's up to the legal guardian/parent/s to decide what that welfare entails. If they opt to pay membership dues to a church, temple or coven, that is their decision. If the child is hungry, sick and in worn-out clothes as a result, that's a matter for child welfare services. Jean Dudley ___ 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.
Re: Locke v. Davey follow-up
are welfare payments tied to expected budget expenses -- food, housing, clothing, transportatoin, medical care, etc? Most welfare is AFDC, and is earmarked for helping children. If mother uses money for food and housing to pay the church, is that welfare fraud? Paul Finkelman Volokh, Eugene wrote: A question (based on, but not quite identical to) Justice Scalia's hypothetical in the dissent: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene ___ 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 of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] ___ 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.
OFF Topic request: My apologies in advance
Paging Mr. Finkelman! Would you kindly email me off list? I've neglected to transfer my address book to my laptop! Sincerely, Jean Dudley ___ 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.
RE: Locke v. Davey follow-up
Title: Message I understand the distinction Doug makes, between money given with no strings attached, and money given for education. I just wonder why this distinction should make a First Amendment difference. (1) Both "here's money, but don't use it for Bible Study" and "here's education money, but don't use it to study theology" are facially discriminatory against religion. (2) Neither "here's money, and use it for what you please" nor "here's education money, and use it for what studies you please" -- i.e., the policy that would result if the no-religious-uses conditions were struck down -- is facially discriminatory in favor of religion. (3) Neither of them can be justified on the grounds that otherwise in practice *a huge fraction* of the program money would go to religious uses. Only a very few Promise Scholarship recipients were using the money for theology purposes. (4) Both of them would equally be justifiable on "we want to make sure that not a threepence of taxpayer money goes, even indirectly through private choices, to religious uses." Am I missing something here? I ask particularly those who support Locke v. Davey -- would you also conclude that the condition on welfare recipients is constitutional? Or would you think it's unconstitutional, in which case how would you distinguish Locke? Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas LaycockSent: Monday, May 02, 2005 2:39 PMTo: Law & Religion issues for Law AcademicsSubject: RE: Locke v. Davey follow-up Hard to see any logical distinction, but at some point the Court will make one. At some point the possible uses of the money are so general it just seems like the state has given the money to the recipient and then tried to control the recipient's life. And under the sort of prophylactice rule upheld in Davey and Rust v. Sullivan, it would not be enough to say the recipient couldn't use welfare money for Bible classes. She couldn't use any other money either that she used for the same pool of expenses that she used the welfare money for. Because then she would just use her own money for Bible classes, and the welfare money to replace her own money. The logic goes that far, but the Court will not go that far.In the shameless plug department, here is what I said about similar hypos:"The Court has so far given total deference to government's desire to avoid any risk of indirectly subsidizing something it chooses not to subsidize, and it has given no weight to the resulting practical penalty on the exercise of constitutional rights. Plainly, there must be some limit to this approach. In the full logic of fungibility, separate schools or separate facilities are not enough. Davey would be more able to afford his theology degree if the state had paid for his business administration degree elsewhere, or if the government had subsidized his student loan, or if it had paid social security benefits to his mother. Of course the Court will not go to that extreme. But it has gone far already; under Davey and Rust, government's power to withhold funding can be leveraged into substantial power to penalize religious liberty or any other constitutional right. Assuming that money is fungible has enabled the Court to avoid facing the problems of the unconstitutional conditions doctrine, but drawing boundaries to that assumption will eventually add another layer of complexity to those problems."Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty, 118 Harv. L. Rev. 155, 183 (2004).Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax)-Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Volokh, EugeneSent: Monday, May 02, 2005 3:00 PMTo: Law & Religion issues for Law AcademicsSubject: Locke v. Davey follow-up A question (based on, but not quite identical to) Justice Scalia's hypothetical in the dissent: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene___To post, send message to Religionlaw@lists.ucla.edu To sub
RE: Locke v. Davey follow-up
Hard to see any logical distinction, but at some point the Court will make one. At some point the possible uses of the money are so general it just seems like the state has given the money to the recipient and then tried to control the recipient's life. And under the sort of prophylactice rule upheld in Davey and Rust v. Sullivan, it would not be enough to say the recipient couldn't use welfare money for Bible classes. She couldn't use any other money either that she used for the same pool of expenses that she used the welfare money for. Because then she would just use her own money for Bible classes, and the welfare money to replace her own money. The logic goes that far, but the Court will not go that far.In the shameless plug department, here is what I said about similar hypos:"The Court has so far given total deference to government's desire to avoid any risk of indirectly subsidizing something it chooses not to subsidize, and it has given no weight to the resulting practical penalty on the exercise of constitutional rights. Plainly, there must be some limit to this approach. In the full logic of fungibility, separate schools or separate facilities are not enough. Davey would be more able to afford his theology degree if the state had paid for his business administration degree elsewhere, or if the government had subsidized his student loan, or if it had paid social security benefits to his mother. Of course the Court will not go to that extreme. But it has gone far already; under Davey and Rust, government's power to withhold funding can be leveraged into substantial power to penalize religious liberty or any other constitutional right. Assuming that money is fungible has enabled the Court to avoid facing the problems of the unconstitutional conditions doctrine, but drawing boundaries to that assumption will eventually add another layer of complexity to those problems."Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty, 118 Harv. L. Rev. 155, 183 (2004).Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax)-Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Volokh, EugeneSent: Monday, May 02, 2005 3:00 PMTo: Law & Religion issues for Law AcademicsSubject: Locke v. Davey follow-up A question (based on, but not quite identical to) Justice Scalia's hypothetical in the dissent: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene___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/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Locke v. Davey follow-up
I think it is a good hypo, Eugene. Perhaps one way to think about an answer is to ask a different question -- Would it be unconstitutional for the state to bar a welfare recipient from using his or her welfare payment to pay church or synagogue membership dues? Alan Brownstein UC Davis At 12:59 PM 5/2/2005 -0700, you wrote: A question (based on, but not quite identical to) Justice Scalia's hypothetical in the dissent: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
Somebody has argued that in Locke, the Washington State Constitution trumped the Federal Constitution -- an interesting argument. If so, then the answer is that whatever the state decides is constitutional, so long as it can rationalize its decision in the terms of the controlling state constitutional provision(s). Apart from the foregoing, how does one distinguish between a Promise Scholarship and a welfare check? (If the answer is that welfare checks are not for educational purposes, then the hypo falls apart, doesn't it, because the welfare recipients are misapplying the welfare grants. But I read the hypo to assume that at least SOME educational purposes are consistent with the welfare regime.) -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Monday, May 02, 2005 4:00 PM To: Law & Religion issues for Law Academics Subject: Locke v. Davey follow-up A question (based on, but not quite identical to) Justice Scalia's hypothetical in the dissent: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Locke v. Davey follow-up
A question (based on, but not quite identical to) Justice Scalia's hypothetical in the dissent: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene ___ 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.
