RE: From the list custodian RE: Alito/The Constitution
Rather, does it mean that he repudiates *sola scriptura*, ascribing equal authority to the Sacred Tradition, as conveyed by the Fathers. At 02:44 PM 1/12/06 -0600, you wrote: centerpiece of American civil religion. If I were to rewrite Mr. Lofton's question, it would be along the lines of, "Does Alito indicate by this statement that he is an institutional "catholic" inasmuch as he ultimately gives more weight to what the magesterium (i.e., prior Supreme Courts) have said than to the original gospel (i.e., the written Constitution) might best be interpreted to mean?" sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2006 1:15 PM To: Law & Religion issues for Law Academics Subject: From the list custodian RE: Alito/The Constitution Just a reminder that this list is designed for discussion of the law of government and religion, not broader debate about constitutional law or constitutionalism. Such broader debate may be tremendously interesting and important -- this list just isn't the place for it. The list custodian > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] > Sent: Thursday, January 12, 2006 11:07 AM > To: Law & Religion issues for Law Academics > Subject: Alito/The Constitution > > > Anyone disturbed that Judge Alito has said: "I don't agree with the > theory that the Constitution always trumps stare decisis"? Sounds like > he's broken his Supreme Court Justice oath before he's taken it. John > Lofton, Editor, TheAmericanView.com. > ___ > 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. ___ 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. -- No virus found in this incoming message. Checked by AVG Anti-Virus. Version: 7.1.371 / Virus Database: 267.14.17/227 - Release Date: 1/11/06 ___ 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.
From the list custodian RE: Prof. Levinson/Lofton/Alito/Oaths
Sandy makes a good argument for the topicality of this thread, but I wonder if it might nonetheless be a little too far removed. There are certainly lots of possible analogies between religious controversies and legal controversies; but it seems to me that this list (as opposed to others, which have a different focus) is at its best when it deals with the law *of* government and religion, rather than with broader questions of constitutional interpretation that are pretty far afield from the Free Exercise Clause, the Establishment Clause, the Religious Test Clause, and so on. Eugene > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] > Sent: Thursday, January 12, 2006 1:33 PM > To: Law & Religion issues for Law Academics > Subject: Prof. Levinson/Lofton/Alito/Oaths > > > Interesting, very discerning mention by Prof. Levinson of > Alito, the possibility he is an institutional "catholic" > inasmuch as he ultimately gives more weight to what the > magesterium (i.e., prior Supreme Courts) have said than to > the original gospel (i.e., the written Constitution) might > best be interpreted to mean? > > This reminded me of a brief conversation I had in the Star > Chamber (11/12/03) with persecuter Alabama Atty. Gen. William > Pryor (also a Catholic) during a break from his badgering of > Roy Moore abt whether, if re-instated, he (Moore) would > (gasp!) continue to acknowledge God. Chatting casually with > Pryor, I told him I was not sure what the problem would be > if all judges were like Moore: Biblically-literate, taking > God's Word seriously, judging man's law by God's Law. (Pryor > and others had talked abt the terrible example Moore had set > and the horrors tht would occur if all judges behaved as he did.) > >Pryor then says to me, who he does not know, that we'd > probably disagree on something very important. He says: "I > think the Reformation was not a good thing." I say something > like, well, in many ways, in America, we're all Protestants > now, aren't we? He says: "But not our courts. They are > Catholic" and the Supreme Court is "the magisterium." > Interesting. John Lofton, Editor, TheAmericanView.com, > neo-Puritan, Calvinist, Postmillennial, Reformed Protestant, > recovering Republican. > > ___ > 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: Davey--Let's Focus on Denominational Equality
On Rick's analogy to Grendel's Den and the question of delegation -- Locke seems very different, because the school and the student have common interests in getting the Scholarship money (and the school, not the student, is in the best position to characterize the relevant course of study). Grendel's Den, involving a veto for houses of worship over the grant of liquor licenses nearby, involves a significant likelihood of conflicting interests, and therefore represents both a favoring of religion and an arbitrary distribution of power to one private party to negatively affect the interests of another. this aOn 12 Jan 2006 at 13:35, Rick Duncan wrote: > > One distinction between line drawing in the direct funding cases and > line drawing in Davey is the latter line is not required by the EC. > > It is absolutely clear that the EC did not require the state to > discriminate against "devotional theology" majors in the Promise > Scholarship program. > > So to the extent that the line in Davey amounts to denominational > discrimination, the idea of a buffer zone between Free Ex and EC does > not save it. Or is there also room for play in the joints between > state anti-establishment principles and denominational discrimination > at the core of the EC (i.e. a state establishment rule that violates > federal establishment principles at the core of the EC)? > > Of course, perhaps no theology major at any religious college receives > Promise funding. We just don't know the facts. But if it turns out > that many religious colleges have qualified their ! theology majors > for the funding--which results in some denominations' clergy training > being funded and some not funded under the Program--I think we have a > problem that is far more serious than the one struck down in Larson. > > Rick > > [EMAIL PROTECTED] wrote: > Point very well taken, thanks, Perry. But as you appear to agree, > that doesn't mean Washington's line-drawing is incoherent or > entirely unworkable, let alone unconstitutional. After all, it is > *exactly* the same line that currently governs the use of direct > aid to schools, social-service organizations, etc. -- the money or > buildings or computers, etc., cannot be used for "specifically > religious activities" (Tilton, Hunt, Roemer), "inherently > religious activities" (Bowen v. Kendrick), or for "religious > indoctrination" (SOC in Mitchell v. Helms). > > What ! do these categories consist of? The Court has never really > said. See Roemer, 426 US at 760 (declining to specify, and falling > back on the assurance that "We must assume that the colleges, and > the Council, will exercise their delegated control over use of the > funds in compliance with the statutory, and therefore the > constitutional, mandate. It is to be expected that they will give > a wide berth to 'specifically religious activity,' and thus > minimize constitutional questions."). Prayer is forbidden, of > course. As is "indoctrination" (O'Connor's term of choice), > whatever that may entail. And "the use of materials that have an > explicitly reliugious content or are designed to inculcate the > views of a particular religious faith." Kendrick, 487 US at 621. > > Beyond that, there surely are the difficult sorts of line-drawing > problems that Perry identifies. But those are problems we've been > living with in Establishment Clause law for an awfully long time, > without any thought that the dist! inctions are constitutionally > suspect or that they raise Larson issues of sect discrimination. > > > -- Original message -- > From: Perry Dane > > The line that Marty is drawing is perfectly sensible, and > > enforceable in a public school context. The problem, though, is > that > religious traditions and institutions often do, and are > perfectly > entitled to, re-configure these sorts of categories > according to > their own best lights. > > For example, most of the > Bible and Jewish History courses, > and many, many, other courses, > taught in the Rabbinical program at > the Jewish Theological > Seminary, which ordains Conservative Rabbis, > could easily be > taught in a public university's Judaic Studies > program. That is > largely because the Conservative movement embraces > the > "academic" historical-critical method in studying such > topics. > For ! that matter, even the education at more "traditional" > > yeshivas, which is generally averse to historical-critical > inquiry, > might still be transposable to a public educational > setting, in that > it largely focuses on the internal, logical, > analysis of Talmudic and > other Jewish legal texts. Yet, in a > larger sense, both JTS and > traditional yeshivas are clearly > engaged in a devotional enterprise, > not to mention the fa
Re: Davey--Let's Focus on Denominational Equality
One distinction between line drawing in the direct funding cases and line drawing in Davey is the latter line is not required by the EC. It is absolutely clear that the EC did not require the state to discriminate against "devotional theology" majors in the Promise Scholarship program. So to the extent that the line in Davey amounts to denominational discrimination, the idea of a buffer zone between Free Ex and EC does not save it. Or is there also room for play in the joints between state anti-establishment principles and denominational discrimination at the core of the EC (i.e. a state establishment rule that violates federal establishment principles at the core of the EC)? Of course, perhaps no theology major at any religious college receives Promise funding. We just don't know the facts. But if it turns out that many religious colleges have qualified their ! theology majors for the funding--which results in some denominations' clergy training being funded and some not funded under the Program--I think we have a problem that is far more serious than the one struck down in Larson. Rick[EMAIL PROTECTED] wrote: Point very well taken, thanks, Perry. But as you appear to agree, that doesn't mean Washington's line-drawing is incoherent or entirely unworkable, let alone unconstitutional. After all, it is *exactly* the same line that currently governs the use of direct aid to schools, social-service organizations, etc. -- the money or buildings or computers, etc., cannot be used for "specifically religious activities" (Tilton, Hunt, Roemer), "inherently religious activities" (Bowen v. Kendrick), or for "religious indoctrination" (SOC in Mitchell v. Helms). What ! do these categories consist of? The Court has never really said. See Roemer, 426 US at 760 (declining to specify, and falling back on the assurance that "We must assume that the colleges, and the Council, will exercise their delegated control over use of the funds in compliance with the statutory, and therefore the constitutional, mandate. It is to be expected that they will give a wide berth to 'specifically religious activity,' and thus minimize constitutional questions."). Prayer is forbidden, of course. As is "indoctrination" (O'Connor's term of choice), whatever that may entail. And "the use of materials that have an explicitly reliugious content or are designed to inculcate the views of a particular religious faith." Kendrick, 487 US at 621. Beyond that, there surely are the difficult sorts of line-drawing problems that Perry identifies. But those are problems we've been living with in Establishment Clause law for an awfully long time, without any thought that the dist! inctions are constitutionally suspect or that they raise Larson issues of sect discrimination.-- Original message --From: Perry Dane <[EMAIL PROTECTED]>> The line that Marty is drawing is perfectly sensible, and > enforceable in a public school context. The problem, though, is that > religious traditions and institutions often do, and are perfectly > entitled to, re-configure these sorts of categories according to > their own best lights.> > For example, most of the Bible and Jewish History courses, > and many, many, other courses, taught in the Rabbinical program at > the Jewish Theological Seminary, which ordains Conservative Rabbis, > could easily be taught in a public university's Judaic Studies > program. That is largely because the Conservative movement embraces > the "academic" historical-critical method in studying such > topics. For ! that matter, even the education at more "traditional" > yeshivas, which is generally averse to historical-critical inquiry, > might still be transposable to a public educational setting, in that > it largely focuses on the internal, logical, analysis of Talmudic and > other Jewish legal texts. Yet, in a larger sense, both JTS and > traditional yeshivas are clearly engaged in a devotional enterprise, > not to mention the fact that they are training clergy. (A further > complication is that, in Jewish thought, learning and study are > themselves devotional acts.)> > All this is not to say either that the Washington > restriction is incoherent or that Davey is wrong. I'm only > suggesting that they pose difficulties, and that those difficulties > arise in part from the many ways that religious traditions draw their > own lines between scholarly inquiry and devotional study.> > Perry> > > > Marty Lederman writes:> >The test in Washington is whether the required courses for the major > >involve instruction aimed at inculcating religious belief in the > >doctrine of a particular religion -- or disbelief. Are they > >devotional in nature or designed to induce religious faith or > >promote a particular religious truth? If so, they're > >ineligible. Or, perhaps more to the point: Could the courses be > >taught by a *public* university in Washington?> > > > > ***
Prof. Levinson/Lofton/Alito/Oaths
Interesting, very discerning mention by Prof. Levinson of Alito, the possibility he is an institutional "catholic" inasmuch as he ultimately gives more weight to what the magesterium (i.e., prior Supreme Courts) have said than to the original gospel (i.e., the written Constitution) might best be interpreted to mean? This reminded me of a brief conversation I had in the Star Chamber (11/12/03) with persecuter Alabama Atty. Gen. William Pryor (also a Catholic) during a break from his badgering of Roy Moore abt whether, if re-instated, he (Moore) would (gasp!) continue to acknowledge God. Chatting casually with Pryor, I told him I was not sure what the problem would be if all judges were like Moore: Biblically-literate, taking God’s Word seriously, judging man’s law by God’s Law. (Pryor and others had talked abt the terrible example Moore had set and the horrors tht would occur if all judges behaved as he did.) Pryor then says to me, who he does not know, that we’d probably disagree on something very important. He says: “I think the Reformation was not a good thing.” I say something like, well, in many ways, in America, we’re all Protestants now, aren't we? He says: "But not our courts. They are Catholic” and the Supreme Court is "the magisterium." Interesting. John Lofton, Editor, TheAmericanView.com, neo-Puritan, Calvinist, Postmillennial, Reformed Protestant, recovering Republican. ___ 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: From the list custodian RE: Alito/The Constitution
Noted -- though I thought Sup Ct, oath, judges might be in the area of "law of government and religion." John Lofton, Editor, TheAmericanView.com. ___ 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: From the list custodian RE: Alito/The Constitution
I can see what Eugene is getting at, but it seems to me that one question raised by John Lofton's comment is the meaning of an "oath." The oath, after all, is to be faithful to the Constitution, which some of us argue functions, for better and distinctly for worse, as the centerpiece of American civil religion. If I were to rewrite Mr. Lofton's question, it would be along the lines of, "Does Alito indicate by this statement that he is an institutional "catholic" inasmuch as he ultimately gives more weight to what the magesterium (i.e., prior Supreme Courts) have said than to the original gospel (i.e., the written Constitution) might best be interpreted to mean?" sandy -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Thursday, January 12, 2006 1:15 PM To: Law & Religion issues for Law Academics Subject: From the list custodian RE: Alito/The Constitution Just a reminder that this list is designed for discussion of the law of government and religion, not broader debate about constitutional law or constitutionalism. Such broader debate may be tremendously interesting and important -- this list just isn't the place for it. The list custodian > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] > Sent: Thursday, January 12, 2006 11:07 AM > To: Law & Religion issues for Law Academics > Subject: Alito/The Constitution > > > Anyone disturbed that Judge Alito has said: "I don't agree with the > theory that the Constitution always trumps stare decisis"? Sounds like > he's broken his Supreme Court Justice oath before he's taken it. John > Lofton, Editor, TheAmericanView.com. > ___ > 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. ___ 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: Drawing lines among religons
This is certainly a broader issue -- and its an interesting point. Three quick thoughts. 1. I think Perry overstates "the American legal instinct not to let theological differences play too large a role in leading to different legal results." See, e.g. Sunday closing laws, conscientious objector laws limited to those who oppose all wars, grooming requirements in institutions and for government employees etc. But he is certainly correct that in some cases we have generalized religious accommodations and extend benefits more broadly than necessary to achieve neutrality or equality among faiths. 2. There has always been some significant tension between the goal of avoiding discrimination among sects and the goal of equalizing treatment between religious and non-religious individuals and institutions. Until recently, during the modern period of religion clause doctrine (post World War II), avoiding sect discrimination was considered the more serious constitutional problem. That paradigm is changing. 3. The integration of different religious groups in American society (which resulted in part from the constitutional commitment to religious equality) created a kind ecumenical merging of certain sect specific religious values with popular normative beliefs. I think, for example, that the Catholic tradition of confidentiality between clergy and penitent in confession has influenced American beliefs about the importance of clergy-congregant confidentiality and those more generic beliefs, in turn, end up being expressed through law. Alan Brownstein -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Perry Dane Sent: Thursday, January 12, 2006 10:28 AM To: religionlaw@lists.ucla.edu Subject: Drawing lines among religons I want to suggest a broader issue if I could, arising out of the Davey discussion. It seems to me that there is an American legal instinct not to let theological differences among religious traditions play too large a role in leading to different legal results, even if those different results could be justified on objective, secular, grounds. Or, to put it another way, our law often bases a particular legal rule on a paradigm case drawn from one religious traditions, and then tends to extend the application of that rule to other faiths, even if their beliefs or practices don't, strictly speaking, fit the original paradigm. Some examples, important and less so: (1) The strict clergy-penitent privilege makes the most sense for those religious traditions that have a strong notion of a specific sacrament of confession, and an absolute seal of confidentiality surrounding that confession. Yet it is applied to all faiths. (If the paradigm case for the privilege were rabbis, for example, rather than Catholic priests, it would probably be less stringent.) (2) If we applied the broader principles of the modern law of charities to the status of churches, it seems fairly clear that many, but not all, would qualify as genuine "public benefit" institutions. Yet the assumption is that, barring outright fraud and the like, all churches qualify. (Notice the difficulty that the opinions in Walz had in explaining why. Notice also that English law is much less sentimental in this regard: it famously holds that while orders of nuns that do educational or other work in the community can qualify as beneficiaries of a valid charitable trust, orders of purely contemplative nuns cannot.) (3) Still on the topic of the law of charities: our justification for allowing a charitable deduction for "contributions" to churches is based on the paradigm of congregants putting money in the basket, and seems, technically speaking, not to fit easily into religions with compulsory tithes, pew rents, High Holiday tickets, etc. Yet all these practices qualify for the deduction. (Hernandez was an effort to draw some sort of line here, but its practical consequence has been nil. Indeed, the IRS ended up settling with the Scientologists.) (4) One of my favorite small examples: the parsonage provision in the tax code, whose effect is to treat all clergy as if, like Catholic priests, they were required to live in church-provided rectories. Now, it does seem to me that this "instinct" makes a good deal of sense for the American dispensation governing the relation of religion and the state. But it is still difficult. In a sense, the choice often comes down to whether we should (a) draw lines among religions, or (b) treat all religions alike, but in the process draw, secularly-speaking weakly-justified lines between religious and non-religious phenomena. Thus, for example, the effect of the parsonage exemption is to give many Jewish and Protestant clergy an arguably arbitrary tax preference compared to non-clergy. On the other hand, the effect of repealing the parsona
Re: Davey--Let's Focus on Denominational Equality
Point very well taken, thanks, Perry. But as you appear to agree, that doesn't mean Washington's line-drawing is incoherent or entirely unworkable, let alone unconstitutional. After all, it is *exactly* the same line that currently governs the use of direct aid to schools, social-service organizations, etc. -- the money or buildings or computers, etc., cannot be used for "specifically religious activities" (Tilton, Hunt, Roemer), "inherently religious activities" (Bowen v. Kendrick), or for "religious indoctrination" (SOC in Mitchell v. Helms). What do these categories consist of? The Court has never really said. See Roemer, 426 US at 760 (declining to specify, and falling back on the assurance that "We must assume that the colleges, and the Council, will exercise their delegated control over use of the funds in compliance with the statutory, and therefore the constitutional, mandate. It is to be expected that they will give a wide berth to 'specifically religious activity,' and thus minimize constitutional questions."). Prayer is forbidden, of course. As is "indoctrination" (O'Connor's term of choice), whatever that may entail. And "the use of materials that have an explicitly reliugious content or are designed to inculcate the views of a particular religious faith." Kendrick, 487 US at 621. Beyond that, there surely are the difficult sorts of line-drawing problems that Perry identifies. But those are problems we've been living with in Establishment Clause law for an awfully long time, without any thought that the distinctions are constitutionally suspect or that they raise Larson issues of sect discrimination. -- Original message -- From: Perry Dane <[EMAIL PROTECTED]> > The line that Marty is drawing is perfectly sensible, and > enforceable in a public school context. The problem, though, is that > religious traditions and institutions often do, and are perfectly > entitled to, re-configure these sorts of categories according to > their own best lights. > > For example, most of the Bible and Jewish History courses, > and many, many, other courses, taught in the Rabbinical program at > the Jewish Theological Seminary, which ordains Conservative Rabbis, > could easily be taught in a public university's Judaic Studies > program. That is largely because the Conservative movement embraces > the "academic" historical-critical method in studying such > topics. For that matter, even the education at more "traditional" > yeshivas, which is generally averse to historical-critical inquiry, > might still be transposable to a public educational setting, in that > it largely focuses on the internal, logical, analysis of Talmudic and > other Jewish legal texts. Yet, in a larger sense, both JTS and > traditional yeshivas are clearly engaged in a devotional enterprise, > not to mention the fact that they are training clergy. (A further > complication is that, in Jewish thought, learning and study are > themselves devotional acts.) > > All this is not to say either that the Washington > restriction is incoherent or that Davey is wrong. I'm only > suggesting that they pose difficulties, and that those difficulties > arise in part from the many ways that religious traditions draw their > own lines between scholarly inquiry and devotional study. > > Perry > > > > Marty Lederman writes: > >The test in Washington is whether the required courses for the major > >involve instruction aimed at inculcating religious belief in the > >doctrine of a particular religion -- or disbelief. Are they > >devotional in nature or designed to induce religious faith or > >promote a particular religious truth? If so, they're > >ineligible. Or, perhaps more to the point: Could the courses be > >taught by a *public* university in Washington? > > > > > *** > Perry Dane > Professor of Law > > Rutgers University > School of Law -- Camden > 217 North Fifth Street > Camden, NJ 08102 > > [EMAIL PROTECTED] > www.camlaw.rutgers.edu/bio/925/ > > Work: (856) 225-6004 > Fax: (856) 969-7924 > Home: (610) 896-5702 > *** > > > ___ > 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 o
From the list custodian RE: Alito/The Constitution
Just a reminder that this list is designed for discussion of the law of government and religion, not broader debate about constitutional law or constitutionalism. Such broader debate may be tremendously interesting and important -- this list just isn't the place for it. The list custodian > -Original Message- > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] > Sent: Thursday, January 12, 2006 11:07 AM > To: Law & Religion issues for Law Academics > Subject: Alito/The Constitution > > > Anyone disturbed that Judge Alito has said: "I don't agree > with the theory that the Constitution always trumps stare > decisis"? Sounds like he's broken his Supreme Court Justice > oath before he's taken it. John Lofton, Editor, TheAmericanView.com. > ___ > 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.
Alito/The Constitution
Anyone disturbed that Judge Alito has said: "I don't agree with the theory that the Constitution always trumps stare decisis"? Sounds like he's broken his Supreme Court Justice oath before he's taken it. John Lofton, Editor, TheAmericanView.com. ___ 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.
Drawing lines among religons
I want to suggest a broader issue if I could, arising out of the Davey discussion. It seems to me that there is an American legal instinct not to let theological differences among religious traditions play too large a role in leading to different legal results, even if those different results could be justified on objective, secular, grounds. Or, to put it another way, our law often bases a particular legal rule on a paradigm case drawn from one religious traditions, and then tends to extend the application of that rule to other faiths, even if their beliefs or practices don't, strictly speaking, fit the original paradigm. Some examples, important and less so: (1) The strict clergy-penitent privilege makes the most sense for those religious traditions that have a strong notion of a specific sacrament of confession, and an absolute seal of confidentiality surrounding that confession. Yet it is applied to all faiths. (If the paradigm case for the privilege were rabbis, for example, rather than Catholic priests, it would probably be less stringent.) (2) If we applied the broader principles of the modern law of charities to the status of churches, it seems fairly clear that many, but not all, would qualify as genuine "public benefit" institutions. Yet the assumption is that, barring outright fraud and the like, all churches qualify. (Notice the difficulty that the opinions in Walz had in explaining why. Notice also that English law is much less sentimental in this regard: it famously holds that while orders of nuns that do educational or other work in the community can qualify as beneficiaries of a valid charitable trust, orders of purely contemplative nuns cannot.) (3) Still on the topic of the law of charities: our justification for allowing a charitable deduction for "contributions" to churches is based on the paradigm of congregants putting money in the basket, and seems, technically speaking, not to fit easily into religions with compulsory tithes, pew rents, High Holiday tickets, etc. Yet all these practices qualify for the deduction. (Hernandez was an effort to draw some sort of line here, but its practical consequence has been nil. Indeed, the IRS ended up settling with the Scientologists.) (4) One of my favorite small examples: the parsonage provision in the tax code, whose effect is to treat all clergy as if, like Catholic priests, they were required to live in church-provided rectories. Now, it does seem to me that this "instinct" makes a good deal of sense for the American dispensation governing the relation of religion and the state. But it is still difficult. In a sense, the choice often comes down to whether we should (a) draw lines among religions, or (b) treat all religions alike, but in the process draw, secularly-speaking weakly-justified lines between religious and non-religious phenomena. Thus, for example, the effect of the parsonage exemption is to give many Jewish and Protestant clergy an arguably arbitrary tax preference compared to non-clergy. On the other hand, the effect of repealing the parsonage exemption would be to give Catholic clergy an objectively justifiable but still discomforting tax preference compared to their Jewish and Catholic colleagues based on the particular ecclesiology and institutional set-up of their respective faiths. This is a real dilemma, and I've never found a totally easy way out if it. (I happen to think that there's a fair amount of intractability in this religion-and-law business. But maybe that's just the post-modernist in me.) I also think that this "instinct" I'm talking about exists below the constitutional surface (though that does not make it any less interesting). But it does raise the usual constitutional questions: When is drawing lines among religions forbidden? (I.e., to what extent does Larson, etc., apply beyond the more blatant cases of religious discrimination and gerrymandering.) When, if ever, is refusing to draw lines among religions forbidden? Perry *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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
Davey--Let's Focus on Denominational Equality
The line that Marty is drawing is perfectly sensible, and enforceable in a public school context. The problem, though, is that religious traditions and institutions often do, and are perfectly entitled to, re-configure these sorts of categories according to their own best lights. For example, most of the Bible and Jewish History courses, and many, many, other courses, taught in the Rabbinical program at the Jewish Theological Seminary, which ordains Conservative Rabbis, could easily be taught in a public university's Judaic Studies program. That is largely because the Conservative movement embraces the "academic" historical-critical method in studying such topics. For that matter, even the education at more "traditional" yeshivas, which is generally averse to historical-critical inquiry, might still be transposable to a public educational setting, in that it largely focuses on the internal, logical, analysis of Talmudic and other Jewish legal texts. Yet, in a larger sense, both JTS and traditional yeshivas are clearly engaged in a devotional enterprise, not to mention the fact that they are training clergy. (A further complication is that, in Jewish thought, learning and study are themselves devotional acts.) All this is not to say either that the Washington restriction is incoherent or that Davey is wrong. I'm only suggesting that they pose difficulties, and that those difficulties arise in part from the many ways that religious traditions draw their own lines between scholarly inquiry and devotional study. Perry Marty Lederman writes: The test in Washington is whether the required courses for the major involve instruction aimed at inculcating religious belief in the doctrine of a particular religion -- or disbelief. Are they devotional in nature or designed to induce religious faith or promote a particular religious truth? If so, they're ineligible. Or, perhaps more to the point: Could the courses be taught by a *public* university in Washington? *** Perry Dane Professor of Law Rutgers University School of Law -- Camden 217 North Fifth Street Camden, NJ 08102 [EMAIL PROTECTED] www.camlaw.rutgers.edu/bio/925/ Work: (856) 225-6004 Fax: (856) 969-7924 Home: (610) 896-5702 *** ___ 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: Davey--Let's Focus on Denominational Equality
Again, the issue in Washington is rather simple: No state aid can be used for classes that could not be taught in the public schools. (Indeed, the constitutional provision in question is precisely the one that bars religious exercise and teaching in public schools.) Thus, if a class can be taught in public schools (e.g., comparative religion), a Promise Scholarship can be used; if not, not. Rick also writes: "If Marty is right and the Program is designed to exclude any student who takes any religious course from funding, then why is the Program being interpreted as excluding only theology majors from funding? If the Program is more narrow, and aims at only excluding clergy-in-training from funding, then are all clergy-in-training excluded, or are many still elgible because of the viewpoint from which their religious colleges teach theology? If the latter, how is this not denominational discrimination with respect to public funding of clergy?" I tried to answer this in my posts yesterday, and I have little to add to them here: The short answer is that the state *statute* excludes the use of scholarship only for students *majoring* in theology where the curriculum is based on religious pedagogy. But the state *constitution* more broadly bars the use of any state aid for any religious course that could not be taught in public schools. Thus, if one is majoring in theology, and if that course of study involves taking classes that are taught from a religious perspective, then the student cannot use the scholarship at the school at all. For all other students, the scholarship may be used to subsidize those classes that are secular, but not those that are religious. -- Original message -- From: Rick Duncan <[EMAIL PROTECTED]> > Chip, here is the problem. I think there is a gerrymander in the sense that > it > favors religious schools that train their clergy from particular viewpoints > on > theology. I really don't know what "devotional" theology means. Does it mean > no > theology classes which accept the truth of any religious issue or concept or > text? Does it mean theology can be taught from a believing perspective so > long > as the approach is academic and open to other perspectives? Or does it mean > that > only "fundamentalist" theology programs (pervasively sectarian programs) are > excluded? > > I really don't know what it means, and the State of Washington has decided > to > punt this issue by allowing each school to self-certify. But of course this > process delegates governmental authority--authority to decide whether a > resident > of the State of Washington (such as Josh Davey) is eligible to paticipate in > a > governmental program--to religious authorities (the administration of the > various religious colleges with theology programs). Maybe I don't understand > the > holdings of Grendel's Den and Larson v. Valente, but the Davey facts seem > squarely within these two cases as clear EC violations. > > But a lot of this turns on the facts. Are all theology majors at all > religious > colleges excluded from funding? Or do some denominations get funding for the > training of their clergy while others do not? That's what I would love to > know. > > Also, if Marty is right and the Program is designed to exclude any student > who > takes any religious course from funding, then why is the Program being > interpreted as excluding only theology majors from funding? If the Program is > more narrow, and aims at only excluding clergy-in-training from funding, then > are all clergy-in-training excluded, or are many still elgible because of the > viewpoint from which their religious colleges teach theology? If the latter, > how > is this not denominational discrimination with respect to public funding of > clergy? > > > Rick Duncan > > --- Begin Message --- Chip, here is the problem. I think there is a gerrymander in the sense that it favors religious schools that train their clergy from particular viewpoints on theology. I really don't know what "devotional" theology means. Does it mean no theology classes which accept the truth of any religious issue or concept or text? Does it mean theology can be taught from a believing perspective so long as the approach is academic and open to other perspectives? Or does it mean that only "fundamentalist" theology programs (pervasively sectarian programs) are excluded? I really don't know what it means, and the State of Washington has decided to punt this issue by allowing each school to self-certify. But of course this process delegates governmental authority--authority to decide whether a resident of the State of Washington (such as Josh Davey) is eligible to paticipate in a governmental program--to religious authorities (the administration of the various religious colleges with theology programs). Maybe I don't understand the hol
Re: Davey--Let's Focus on Denominational Equality
Rick: The important issue in Davey is, in fact, the one the Court decided. The issues in this thread, by contrast, and in my humble opinion, are not important, because they're not raised by the Washington program. If Gonzaga's theology pedagogy teaches that God exists, that Jesus is His Son, and that Jesus died to cover the sins of humanity, then students may not use Promise Scholarships there. If, on the other hand, Gonzaga's curriculum is one that could be taught in public schools, then the scholarships can be used there. There is nothing resembling denominational discrimination in this. -- Original message -- From: Rick Duncan <[EMAIL PROTECTED]> > Marty and I have a very different way of identifying the important issues > in > Davey. > > First, I didn't suggest any school would lie to certify their theology > program. In fact, I said I myself would have certified Josh Davey's > eligibility > in perfect good faith, because in my opinion he was pursuing an academic > course > of study, not a devotional course of study. I think the meaning of > "devotional" > theology is not as clear as Marty seem to think it is. Theology is a rigorous > academic discipline and even the most devout colleges teach it as such. For > example, at most conservative Christian colleges, the students are already > believers and the purpose of the theology program is therefore not to "induce > religious faith" but rather to help people who already have faith to master > the > skills of a theologian--the foreign language and translation skills, the > analytical skills, the Bible knowledge skills, historical knowledge, > cultural > knowledge, counseling skills, etc. > > I started this thread with a factual question, because I suspect that > theology > majors at many religious colleges in Washington have not been excluded under > the > Program. No one seems to know the facts first hand, but I would bet the house > that many eligible Promise Scholars are majoring in theology at their > respective > religious colleges because the school has certified in perfect good faith > that > the program is "non-devotional." > > I don't know how theology is taught at Gonzaga, but I would bet that it is > not > taught from an agnostic perspective. I'm sure it is a rigorous Catholic > academic > course of study, one that takes as a given that God exists, that Jesus is His > Son, and that Jesus died to cover the sins of humanity. Are Gonzaga students > ineligible for Promise funds if they major in theology. I don't know for > sure--does anyone on the list?--but I would bet they are receiving the > scholarship money. > > If it turns out that theology majors from many religious colleges are > eligible > for funding under the Program, and if the reason for this turns explicitly on > the viewpoint from which these religious colleges teach religion, how can > this > not be denominational discrimination? Now maybe Larson is no longer good law, > and maybe denominational discrimination is no longer considered a violation > of > the clearest command of the EC, but if this principle is still law then > Washington has clearly violated it. > > Nothing goes more to the idea of denominational inequality than a > regulation > about the teaching of theology that allows some denominations funding for the > thological training of their clergy while denying other denominations funding > for the training of their clergy. Am I wrong about this? > > Rick Duncan > > > > [EMAIL PROTECTED] wrote: Rick: You continue to try to make this much > harder than it is in fact. The test in Washington is whether the required > courses for the major involve instruction aimed at inculcating religious > belief > in the doctrine of a particular religion -- or disbelief. Are they devotional > in > nature or designed to induce religious faith or promote a particular > religious > truth? If so, they're ineligible. Or, perhaps more to the point: Could the > courses be taught by a *public* university in Washington? > > There's no denominational discrimination in those criteria -- they apply to > all > religious schools alike, and would apply to an atheist school, too (i.e., one > that inculcates disbelief). The fact that the state does not itself oversee > the > classes, but instead trusts the schools themselves to certify whether they > meet > the criteria, is also not constitutionally problematic. Your post suggests > that > such a deferential system favors "denominations" that would lie to the State > about the content of their courses. I suppose that's correct. But don't you > think it's fair -- and constitutionally unproblematic -- for the State to > assume, as I do, that religious schools *won't* dissemble in official > certifications? > > > > > Rick Duncan > Welpton Professor of Law > University of Nebraska Colle
Re: Davey--Let's Focus on Denominational Equality
Marty and I have a very different way of identifying the important issues in Davey. First, I didn't suggest any school would lie to certify their theology program. In fact, I said I myself would have certified Josh Davey's eligibility in perfect good faith, because in my opinion he was pursuing an academic course of study, not a devotional course of study. I think the meaning of "devotional" theology is not as clear as Marty seem to think it is. Theology is a rigorous academic discipline and even the most devout colleges teach it as such. For example, at most conservative Christian colleges, the students are already believers and the purpose of the theology program is therefore not to "induce religious faith" but rather to help people who already have faith to master the skills of a theologian--the foreign language and translation skills, the analytical skills, the Bible knowle! dge skills, historical knowledge, cultural knowledge, counseling skills, etc. I started this thread with a factual question, because I suspect that theology majors at many religious colleges in Washington have not been excluded under the Program. No one seems to know the facts first hand, but I would bet the house that many eligible Promise Scholars are majoring in theology at their respective religious colleges because the school has certified in perfect good faith that the program is "non-devotional." I don't know how theology is taught at Gonzaga, but I would bet that it is not taught from an agnostic perspective. I'm sure it is a rigorous Catholic academic course of study, one that takes as a given that God exists, that Jesus is His Son, and that Jesus died to cover the sins of humanity. Are Gonzaga students ineligible for Promise funds if they major in theology. I d! on't know for sure--does anyone on the list?--but I would bet they are receiving the scholarship money. If it turns out that theology majors from many religious colleges are eligible for funding under the Program, and if the reason for this turns explicitly on the viewpoint from which these religious colleges teach religion, how can this not be denominational discrimination? Now maybe Larson is no longer good law, and maybe denominational discrimination is no longer considered a violation of the clearest command of the EC, but if this principle is still law then Washington has clearly violated it. Nothing goes more to the idea of denominational inequality than a regulation about the teaching of theology that allows some denominations funding for the thological training of their clergy while denying other denominations funding for the training of their clergy. Am I wrong about this? Rick Duncan [EMAIL PROTECTED] wrote: Rick: You continue to try to make this much harder than it is in fact. The test in Washington is whether the required courses for the major involve instruction aimed at inculcating religious belief in the doctrine of a particular religion -- or disbelief. Are they devotional in nature or designed to induce religious faith or promote a particular religious truth? If so, they're ineligible. Or, perhaps more to the point: Could the courses be taught by a *public* university in Washington?There's no denominational discrimination in those criteria -- they apply to all religious schools alike, and would apply to an atheist school, too (i.e., one that inculcates disbelief). The fact that the state does not itself oversee the classes, but instead trusts the schools themselves t! o certify whether they meet the criteria, is also not constitutionally problematic. Your post suggests that such a deferential system favors "denominations" that would lie to the State about the content of their courses. I suppose that's correct. But don't you think it's fair -- and constitutionally unproblematic -- for the State to assume, as I do, that religious schools *won't* dissemble in official certifications? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner Yahoo! Photos Got holiday prints? See all the ways to get quality prints in your hands ASAP.___ 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: Davey--Let's Focus on Denominational Equality
Chip, here is the problem. I think there is a gerrymander in the sense that it favors religious schools that train their clergy from particular viewpoints on theology. I really don't know what "devotional" theology means. Does it mean no theology classes which accept the truth of any religious issue or concept or text? Does it mean theology can be taught from a believing perspective so long as the approach is academic and open to other perspectives? Or does it mean that only "fundamentalist" theology programs (pervasively sectarian programs) are excluded? I really don't know what it means, and the State of Washington has decided to punt this issue by allowing each school to self-certify. But of course this process delegates governmental authority--authority to decide whether a resident of the State of Washington (such as Josh Davey) is eligible to paticipate in a governmental program--to religious authorities (the administration of the various religious colleges with theology programs). Maybe I don't understand the holdings of Grendel's Den and Larson v. Valente, but the Davey facts seem squarely within these two cases as clear EC violations. But a lot of this turns on the facts. Are all theology majors at all religious colleges excluded from funding? Or do some denominations get funding for the training of their clergy while others do not? That's what I would love to know. Also, if Marty is right and the Program is designed to exclude any student who takes any religious course from funding, then why is the Program being interpreted as excluding only theology majors from funding? If the Program is more narrow, and aims at only excluding clergy-in-training from funding, then are all clergy-in-training excluded, or are many still elgible because of the viewpoint from which their r! eligious colleges teach theology? If the latter, how is this not denominational discrimination with respect to public funding of clergy? Rick Duncan Lupu <[EMAIL PROTECTED]> wrote: Two comments on Rick's post:1. It's a bit difficult to see discrimination or entanglement in asystem in which every school self-certifies. (I'm assuming that thestate accepts the certification. Is there any evidence thatWashington does not?)2. Is there a gerrymander here, as there was in Larson v. Valente?I have trouble seeing it. Critics of the Cleveland voucher systemclaimed an unconstitutional gerrymander -- it favored Catholics,because they had the most religious schools in the city, and thetuition voucher amount mapped nicely on to the tuition at theCatholic! schools. Did you agree with that criticism, Rick? Or didyou think the voucher system was "neutral," because every faithwas free to open a school, and to charge no more than the voucheramount (or to accept voucher students for less than full tuition)? InWashington State, every school is eqaully free to offer non-devotional theology courses, and equally free to self-certify ashaving a non-devotional theology major. (Larson, by contrast,involved some rather explicit legislative history of attempts toregulate the Unification Church, and to exempt mainstreamchurches from comparable regulation. Is there anything remotelyresembling such evidence from Washington State?)On 12 Jan 2006 at 7:13, Rick Duncan wrote:>> Chip Lupu writes: "For what it's worth in this conversation, the> Supreme Court's opinion in Locke includes this:>> "Once the student enrolls at an eligible institution, the institution> m! ust certify . . . that the student is not pursuing a degree in> devotional theology. The institution, rather than the State,> determines whether the student's major is devotional.">> That doesn't solve the problems of under-inclusion, but it does solve> the entanglement problem that Rick seemed to be worried about ,> doesn't it?">> I think there are entanglement problems with the "devotional theology"> exclusion (what, for example, would Washington do if all schools> certify that their theology majors are not pursuing a "devotional"> degree, but rather a rigorous academic theology degree?), but I think> the bigger problems are with denominational equality under the EC and> Larson.>> I ! don't know what other religious schools actually have done about> their theology majors, but lets assume that some or even many of them> of them--maybe some Catholic colleges or Methodist colleges orschools> likeYale Divinity which, though secularized, have many theology majors> from more worldly or modernist denominationswho are indeed studying> theology in preparation for a career in religious ministry--are> willing to certify that their theology majors are not pursuing a> "devotional theology" degree.>> I am not suggesting bad faith here--I have no idea what "devotional> theology" means. If it means that the courses are not academic in> contentbut mere worship services, the exclusion will not apply to any> theology major. Even in the most devout religious colleges, theology> is taught as a r
Re: Davey--Let's Focus on Denominational Equality
Two comments on Rick's post: 1. It's a bit difficult to see discrimination or entanglement in a system in which every school self-certifies. (I'm assuming that the state accepts the certification. Is there any evidence that Washington does not?) 2. Is there a gerrymander here, as there was in Larson v. Valente? I have trouble seeing it. Critics of the Cleveland voucher system claimed an unconstitutional gerrymander -- it favored Catholics, because they had the most religious schools in the city, and the tuition voucher amount mapped nicely on to the tuition at the Catholic schools. Did you agree with that criticism, Rick? Or did you think the voucher system was "neutral," because every faith was free to open a school, and to charge no more than the voucher amount (or to accept voucher students for less than full tuition)? In Washington State, every school is eqaully free to offer non- devotional theology courses, and equally free to self-certify as having a non-devotional theology major. (Larson, by contrast, involved some rather explicit legislative history of attempts to regulate the Unification Church, and to exempt mainstream churches from comparable regulation. Is there anything remotely resembling such evidence from Washington State?) On 12 Jan 2006 at 7:13, Rick Duncan wrote: > > Chip Lupu writes: "For what it's worth in this conversation, the > Supreme Court's opinion in Locke includes this: > > "Once the student enrolls at an eligible institution, the institution > must certify . . . that the student is not pursuing a degree in > devotional theology. The institution, rather than the State, > determines whether the student's major is devotional." > > That doesn't solve the problems of under-inclusion, but it does solve > the entanglement problem that Rick seemed to be worried about , > doesn't it?" > > I think there are entanglement problems with the "devotional theology" > exclusion (what, for example, would Washington do if all schools > certify that their theology majors are not pursuing a "devotional" > degree, but rather a rigorous academic theology degree?), but I think > the bigger problems are with denominational equality under the EC and > Larson. > > I ! don't know what other religious schools actually have done about > their theology majors, but lets assume that some or even many of them > of them--maybe some Catholic colleges or Methodist colleges orschools > likeYale Divinity which, though secularized, have many theology majors > from more worldly or modernist denominationswho are indeed studying > theology in preparation for a career in religious ministry--are > willing to certify that their theology majors are not pursuing a > "devotional theology" degree. > > I am not suggesting bad faith here--I have no idea what "devotional > theology" means. If it means that the courses are not academic in > contentbut mere worship services, the exclusion will not apply to any > theology major. Even in the most devout religious colleges, theology > is taught as a rigorous academic major, requiring objective study of > Greek, Hebrew, history, culture, and text interpretation. Indeed,the > study of theologyis a lot like law school in that it involves the > rigorous analysisof law and text. > > So, anyway, let's assume that many religious colleges have been > willing to certify thattheir theology majors are eligible for the > Promise Scholarship, but some, like Davey's school, have bent over > backwards to be "honest" and havedeclined to certify their programs as > non-devotional ( these schools are too honest methinks--if I were > Davey's financial aid director I would have signed the certification > for his scholarship in a flash and gone home and gotten a great > night's sleep). Okay, so what this means is theology students from > some denominations are excluded from the program and other theology > students from other denominations are eligible for funding. Some > denominations get state funding for the religious education of their > future ministers, and other denominations do not get funding. > > Why is! n't this a clear violation of Larson and the core EC principle > of denominational equality? The exclusion facially focuses on theology > and religious studies and classifies the study of religion on the > basis of the viewpoint from which it is taught--the viewpoints taught > by some denominations are funded, those taught by others are not > funded.As Larson indicates, this violates the core command of the EC > because it distorts competition among thesects by giving some > denominations a comparative advantage overothers with respect to the > theological training of ministers and clergy. > > And while I am at it, why doesn't this scheme also violate Larkin v. > Grendel's Den? Hasn't Washington delegated governmental authority to > religious bodies by asking them to decide which students are and which > are not excluded from a governmental program (the Promise > Scholarship). Th
Re: Davey--Let's Focus on Denominational Equality
Rick: You continue to try to make this much harder than it is in fact. The test in Washington is whether the required courses for the major involve instruction aimed at inculcating religious belief in the doctrine of a particular religion -- or disbelief. Are they devotional in nature or designed to induce religious faith or promote a particular religious truth? If so, they're ineligible. Or, perhaps more to the point: Could the courses be taught by a *public* university in Washington? There's no denominational discrimination in those criteria -- they apply to all religious schools alike, and would apply to an atheist school, too (i.e., one that inculcates disbelief). The fact that the state does not itself oversee the classes, but instead trusts the schools themselves to certify whether they meet the criteria, is also not constitutionally problematic. Your post suggests that such a deferential system favors "denominations" that would lie to the State about the content of their courses. I suppose that's correct. But don't you think it's fair -- and constitutionally unproblematic -- for the State to assume, as I do, that religious schools *won't* dissemble in official certifications? -- Original message -- From: Rick Duncan <[EMAIL PROTECTED]> > Chip Lupu writes: "For what it's worth in this conversation, the Supreme > Court's > opinion in Locke includes this: > > "Once the student enrolls at an eligible institution, the institution > must certify . . . that the student is not pursuing a degree in > devotional theology. The institution, rather than the State, > determines whether the student's major is devotional." > > That doesn't solve the problems of under-inclusion, but it does solve > the entanglement problem that Rick seemed to be worried about , > doesn't it?" > > I think there are entanglement problems with the "devotional theology" > exclusion (what, for example, would Washington do if all schools certify that > their theology majors are not pursuing a "devotional" degree, but rather a > rigorous academic theology degree?), but I think the bigger problems are with > denominational equality under the EC and Larson. > > I don't know what other religious schools actually have done about their > theology majors, but lets assume that some or even many of them of > them--maybe > some Catholic colleges or Methodist colleges or schools like Yale Divinity > which, though secularized, have many theology majors from more worldly or > modernist denominations who are indeed studying theology in preparation for a > career in religious ministry--are willing to certify that their theology > majors > are not pursuing a "devotional theology" degree. > > I am not suggesting bad faith here--I have no idea what "devotional > theology" > means. If it means that the courses are not academic in content but mere > worship > services, the exclusion will not apply to any theology major. Even in the > most > devout religious colleges, theology is taught as a rigorous academic major, > requiring objective study of Greek, Hebrew, history, culture, and text > interpretation. Indeed, the study of theology is a lot like law school in > that > it involves the rigorous analysis of law and text. > > So, anyway, let's assume that many religious colleges have been willing to > certify that their theology majors are eligible for the Promise Scholarship, > but > some, like Davey's school, have bent over backwards to be "honest" and have > declined to certify their programs as non-devotional ( these schools are too > honest methinks--if I were Davey's financial aid director I would have signed > the certification for his scholarship in a flash and gone home and gotten a > great night's sleep). Okay, so what this means is theology students from some > denominations are excluded from the program and other theology students from > other denominations are eligible for funding. Some denominations get state > funding for the religious education of their future ministers, and other > denominations do not get funding. > > Why isn't this a clear violation of Larson and the core EC principle of > denominational equality? The exclusion facially focuses on theology and > religious studies and classifies the study of religion on the basis of the > viewpoint from which it is taught--the viewpoints taught by some > denominations > are funded, those taught by others are not funded. As Larson indicates, this > violates the core command of the EC because it distorts competition among the > sects by giving some denominations a comparative advantage over others with > respect to the theological training of ministers and clergy. > > And while I am at it, why doesn't this scheme also violate Larkin v. > Grendel's > Den? Hasn't Washington delegated governmental authority to religious bodies > by > asking them to deci
Davey--Let's Focus on Denominational Equality
Chip Lupu writes: "For what it's worth in this conversation, the Supreme Court'sopinion in Locke includes this:"Once the student enrolls at an eligible institution, the institutionmust certify . . . that the student is not pursuing a degree indevotional theology. The institution, rather than the State,determines whether the student's major is devotional."That doesn't solve the problems of under-inclusion, but it does solvethe entanglement problem that Rick seemed to be worried about ,doesn't it?" I think there are entanglement problems with the "devotional theology" exclusion (what, for example, would Washington do if all schools certify that their theology majors are not pursuing a "devotional" degree, but rather a rigorous academic theology degree?), but I think the bigger problems are with denominational equality under the EC and Larson. I ! don't know what other religious schools actually have done about their theology majors, but lets assume that some or even many of them of them--maybe some Catholic colleges or Methodist colleges or schools like Yale Divinity which, though secularized, have many theology majors from more worldly or modernist denominations who are indeed studying theology in preparation for a career in religious ministry--are willing to certify that their theology majors are not pursuing a "devotional theology" degree. I am not suggesting bad faith here--I have no idea what "devotional theology" means. If it means that the courses are not academic in content but mere worship services, the exclusion will not apply to any theology major. Even in the most devout religious colleges, theology is taught as a rigorous academic major, requiring objective study of Greek, Hebrew, history, culture, and text interpretation. Indeed, the study of theology is a lot like law school in that it involves the rigorous analysis of law and text. So, anyway, let's assume that many religious colleges have been willing to certify that their theology majors are eligible for the Promise Scholarship, but some, like Davey's school, have bent over backwards to be "honest" and have declined to certify their programs as non-devotional ( these schools are too honest methinks--if I were Davey's financial aid director I would have signed the certification for his scholarship in a flash and gone home and gotten a great night's sleep). Okay, so what this means is theology students from some denominations are excluded from the program and other theology students from other denominations are eligible for funding. Some denominations get state funding for the religious education of their future ministers, and other denominations do not get funding. Why is! n't this a clear violation of Larson and the core EC principle of denominational equality? The exclusion facially focuses on theology and religious studies and classifies the study of religion on the basis of the viewpoint from which it is taught--the viewpoints taught by some denominations are funded, those taught by others are not funded. As Larson indicates, this violates the core command of the EC because it distorts competition among the sects by giving some denominations a comparative advantage over others with respect to the theological training of ministers and clergy. And while I am at it, why doesn't this scheme also violate Larkin v. Grendel's Den? Hasn't Washington delegated governmental authority to religious bodies by asking them to decide which students are and which are not excluded from a governmental program (the Promise Scholarship). This is not just a minor administrative requiremen! t like certifying full time enrollment, but rather religious colleges are interpreting the law by deciding which programs are "devotional" and which are "non-devotional" and thus which Washington citizens are excluded from a governmental program That's enough for now. Suffice it to say that I believe the querstions left open by Davey are far greater than those resolved by the Court. Rick Duncan Douglas Laycock <[EMAIL PROTECTED]> wrote: Marty may be right about the Washington constitution. But the statute seems to enact a bright-line rule that was far more visible. I obviously h! ave not done any empirical investigation, but my sense from the record and the briefs in Davey was the state was not preventing students in secular majors from taking theology courses with their scholarships. A financial aid counselor testified that he counseled kids not to declare other majors in order to get the scholarship if their real goal was to become a pastor. So the school seems to have been focused on the clergy-only rationale. The fact that this issue arose suggests that the device of declaring another major would have worked -- that the state was not interfering. But perhaps this testimony also implies that the school was worried about what the state's response might be if this s! ort of maneuver became commonly used and
