EC Compelling Interest: Right to Receive Speech as Compelling
I wrote: In the case of a holiday display, one could view this as a case involving a willing speaker (the county govt) and a willing audience (those who wish to enjoy the holiday expression) who are being censored by a heckler's veto under the EC. I think it is important that govt speech be available to those who wish to receive it. Is it extraordinarily important? Doug Laycock responded: The trouble with Rick Duncan's examples is that the alleged compelling interests are simply negations of the clause. Folks here really really want government support for their religion, and that desire is a compelling interest that justifies an exception to the rule against government support for religion. I think the state interests I proposed are more than mere negations of the EC; rather they are independent First Amendment rights recognized by a decisive plurality of the Sct in Pico. In Pico, we had a case of govt sponsored speech (books in a public school library) that some in the community didn't like and complained about. The govt removed some of the books to satisfy the complainers. The Pico plurality held that the Free Sp Cl includes a right of a willing audience to receive govt speech in the form of books in the school library. Now maybe Pico is wrong and there is no such right to receive. But if Pico is right, then what we have, when a Nativity display is challenged undeer the EC, is a viewpoint based attack on the right to receive govt sponsored expression (not govt support for religion, but a govt sponsored message recognizing a holiday that some in the community are celebrating). The problem with the EC is that it is not really a liberty interest like most other incorporated rights. Rather, it is a structural limitation on the power of state and local govt that somehow got incorporated by the Due Process Clause in Everson. As a structural limitation on govt power, there is nothing to balance once something is found to amount to an endorsement of religion. Govt simply lacks power to endorse religion. There is no compelling interest test, no balancing; govt is without power to endorse religion and the case is over. Period. I think this makes a lot of sense given the caselaw, and explains why the Ct never (hardly ever) even discusses balancing and possible justification in EC cases. They are not cases in which a liberty interest conflicts with govt power; rather, they are cases in which a structural limitation on govt power absolutely denies govt the ability to endorse religion even when there would otherwise be a compellingly important interest--under the Fr Sp Cl--of a willing audience to receive govt speech recognizing the origins of the Christmas holiday. Any further thoughts? Or has this topic run its course? Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Sick sense of humor? Visit Yahoo! TV's Comedy with an Edge to see what's on, when. ___ 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: EC Compelling Interest
You might argue that the secular purpose test in Lemon plays a role similar to the compelling interest test in expression or equal protection cases. A secular purpose (or interest) is a compelling one-- a religious purpose (or interest) never is. The second strand of Lemon-- primary effect-- might be seen as playing a role similar to the requirement in other cases that laws be narrowly tailored to carry out the government's compelling interest. A secular purpose needs to be carried out by means that do not excessively advance or inhibit religion,i.e. by narrowly tailored means. Howard Friedman From: [EMAIL PROTECTED] on behalf of Saperstein, David (RAC) Sent: Mon 7/23/2007 9:27 PM To: Law Religion issues for Law Academics Subject: RE: EC Compelling Interest I would assume that the area of EC issues that is most tempting to think of in terms of compelling interest has to do with government expenditures not speech. If e.g. studies actually showed that religious based substance treatment programs were decisively more effective than non-religious programs, is there a compelling government interest in addressing effectively the drug epidemic or in providing effective (often life-saving) health treatments for eligible patients that might justify funding to expand such programs? In the case of damage or destruction from natural catastrophes, might a compelling interest test justify direct payments to rebuild churches? Might the compelling interest in protecting more likely terrorism targets e.g. NY City based synagogues, churches, mosques justify direct government funding for enhancing security? As I assume most of you know, I write as someone who in the main opposes such funding as unconstitutional and few courts have taken up this line but the funding arena is where I find folks falling back intuitively on this kind of thinking. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael Sent: Monday, July 23, 2007 7:06 PM To: Law Religion issues for Law Academics Subject: RE: EC Compelling Interest Isn't the whole point of the EC that the government cannot be permitted to be a willing speaker when it comes to God-talk? And isn't this the reason why a per se analysis is more consistent with that purpose than any compelling interest test might be? The EC contains its own compelling interest, doesn't it? And isn't that compelling interest essentially freedom FROM religion? (Why, for the sake of discussion, should X's freedom OF religion trump Y's freedom FROM religion? And isn't it true, therefore, that large claims of freedom OF religion, of Free Exercise, should be viewed with a great deal of suspicion especially given the categorical nature of the EC, of freedom FROM religion, whereas there is no comparable categorical freedom OF religion? Of course my Protestant Empire thesis provides a useful way of assessing both freedom FROM and freedom OF religion claims. I have another Protestant Empire piece coming out shortly which looks at this problem in part through the lens or prism of proselytizing in the public schools and elsewhere.) Isn't it also true, therefore, that to characterize the objection to the display as a heckler's veto begs the question to be decided? If the government cannot be a willing speaker then the censor is not the heckler but is the EC itself. It is interesting to recall that the pre-Incorporation common school religion cases divided on this point. The state courts that upheld prayer and Bible reading in public schools almost always characterized the objectors as hecklers. The minority of state courts that struck down or limited these practices never used such terminology in describing those who objected to these religious exercises. Was the pre-Incorporation state court minority right when it struck down or limited Bible reading and prayer in the public schools? Were Engel and Schempp correctly decided? From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Monday, July 23, 2007 5:14 PM To: Law Religion issues for Law Academics Subject: RE: EC Compelling Interest Of course, one of the problems with a compelling interest test is no one really knows what interests are extraordinarily important and which are less so. And different folks may have different scales of importance. In the case of a holiday display, one could view this as a case involving a willing speaker (the county govt) and a willing audience (those who wish to enjoy the holiday expression) who are being censored by a heckler's veto under the EC. I think it is important that govt speech be available to those who wish to receive it. Is it extraordinarily important? I don't know. I would at least like to see the Ct apply the compelling interest test and explain why this
RColorado Christian University Case: EC Compelling Interest
Doug Laycock writes: I don't know much about this case, but certainly as Rick describes it, it is just the state disagreeing with the federal rule on denominational discrimination. Doug and others, the CCU case is a very interesting and (I think) very important case making its way up the system. Here is a link to the district ct opinion which is currently being appealed. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Ready for the edge of your seat? Check out tonight's top picks on Yahoo! TV. ___ 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: Colorado Christian University Case: EC Compelling Interest
OK, I've now read the whole opinion, and I think the court's judgment is plainly correct under governing doctrine. The crucial point is that CCU's education necessarily invovles inculcation of religious truths and spiritual transformation. A substantial portion of the 'secular' instruction its students receive is inextricably entwined with religious indoctrination. CCU stipulates that its President 'informs incoming freshmen that Everything you learn at CCU will be framed within the Christian worldview, integrating your faith and your learning.' ¶ 16. In an alumni publication, the President wrote that 'Education at CCU . . . is simply more than students could hope to find in any secular setting, because [their] education here has been structured intentionally to foster their spiritual transformation.' ¶ 20. . . . CCU admits that it requires all of its undergraduate students to attend 25 of the 30 semiweekly chapel services each semester. ¶ 37. (The label of pervasively sectarian is basically being applied only as a proxy to make this simple point about the nature of the education, i.e., that it involves both instruction on religious truth and compelled religious rituals -- something that apparently is not disputed.) OK, so if Colorado funded this education, it would be funding prayer, religious inculcation, and spiritual transformation. What follows? 1. If any of the aid programs in question is a direct aid program, or a program in which the school rather than the student applies for the aid -- something that is not clear from the bare-bones listing of the aid programs in footnote 3 -- then such state funding of religious education would violate the *federal* Constitution, per Mitchell v. Helms and countless other cases. 2. If, on the other hand, all five of the programs are a type of Zelman-like indirect aid to students, Colorado *could* fund the CCU religious inculcation (per Zelman), but need not do so (per Locke). Now, of course the new Court might very well overrule the entire Mitchell line of cases *and* Locke. But until it does so, this decision strikes me as compelled by the case law. -- Original message -- From: Rick Duncan [EMAIL PROTECTED] Doug Laycock writes: I don't know much about this case, but certainly as Rick describes it, it is just the state disagreeing with the federal rule on denominational discrimination. Doug and others, the CCU case is a very interesting and (I think) very important case making its way up the system. Here is a link to the district ct opinion which is currently being appealed. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Ready for the edge of your seat? Check out tonight's top picks on Yahoo! TV. ---BeginMessage--- Doug Laycock writes: I don't know much about this case, but certainly as Rick describes it, it is just the state disagreeing with the federal rule on denominational discrimination. Doug and others, the CCU case is a very interesting and (I think) very important case making its way up the system. Here is a link to the district ct opinion which is currently being appealed. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Ready for the edge of your seat? Check out tonight's top picks on Yahoo! TV. ___ 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.---End Message--- ___ 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
Re: Colorado Christian University Case: EC Compelling Interest
Marty: I don't think Locke controls the much different Free Ex issue in this case, but setting aside Locke, Colorado has still engaged in denominational discrimination in a Zelman-like, true private choice scholarship program. Under the EC, it is not only permissible to include pervasivlely sectarian schools in a voucher program, it is forbidden under Larson to exclude some religious colleges while including others. There is no play in the joints issue here--the EC forbids discrimination among religions. The district ct correctly recognized the Larson denominational discrimination violation, but incorrectly ruled that Colorado has a compelling interest in discriminating against some religious colleges. If Colorado had chosen to exclude all religious colleges from the program, the Larson issue would go away and we would have to decide how Locke v. Davey Lukumi and the FEC applies to a much different free exercise issue. But Colorado has chosen to include some religious colleges and to exclude others from participation in the program, and that violates the clearest command of the EC under Larson. Colorado's interest in complying with its own, very different, anti-establishment concerns under state law do not justify its violation of the core principle of the EC under the US Constitution. I think CCU should win this case under Locke Lukumi and the FEC, but I am certain it should win this case under Larson... if Larson is still the law of the land. Rick [EMAIL PROTECTED] wrote: OK, I've now read the whole opinion, and I think the court's judgment is plainly correct under governing doctrine. The crucial point is that CCU's education necessarily invovles inculcation of religious truths and spiritual transformation. A substantial portion of the 'secular' instruction its students receive is inextricably entwined with religious indoctrination. CCU stipulates that its President 'informs incoming freshmen that Everything you learn at CCU will be framed within the Christian worldview, integrating your faith and your learning.' ¶ 16. In an alumni publication, the President wrote that 'Education at CCU . . . is simply more than students could hope to find in any secular setting, because [their] education here has been structured intentionally to foster their spiritual transformation.' ¶ 20. . . . CCU admits that it requires all of its undergraduate students to attend 25 of the 30 semiweekly chapel services each semester. ¶ 37. (The label of pervasively sectarian is basically being applied only as a proxy to make this simple point about the nature of the education, i.e., that it involves both instruction on religious truth and compelled religious rituals -- something that apparently is not disputed.) OK, so if Colorado funded this education, it would be funding prayer, religious inculcation, and spiritual transformation. What follows? 1. If any of the aid programs in question is a direct aid program, or a program in which the school rather than the student applies for the aid -- something that is not clear from the bare-bones listing of the aid programs in footnote 3 -- then such state funding of religious education would violate the *federal* Constitution, per Mitchell v. Helms and countless other cases. 2. If, on the other hand, all five of the programs are a type of Zelman-like indirect aid to students, Colorado *could* fund the CCU religious inculcation (per Zelman), but need not do so (per Locke). Now, of course the new Court might very well overrule the entire Mitchell line of cases *and* Locke. But until it does so, this decision strikes me as compelled by the case law. -- Original message -- From: Rick Duncan Doug Laycock writes: I don't know much about this case, but certainly as Rick describes it, it is just the state disagreeing with the federal rule on denominational discrimination. Doug and others, the CCU case is a very interesting and (I think) very important case making its way up the system. Here is a link to the district ct opinion which is currently being appealed. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Ready for the edge of your seat? Check out tonight's top picks on Yahoo! TV. From: Rick Duncan [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RColorado Christian University Case: EC Compelling Interest Date: Tue, 24 Jul 2007 15:16:44 + Doug Laycock writes: I
Re: Colorado Christian University Case: EC Compelling Interest
Rick, with all respect, I think you're simply ignoring the rationale of the Colorado statute and constitution. Yes, Colorado permits *some* religiously affiliated colleges to participate in the programs -- it allows, e.g., aid to Regis University and the Univ. of Denver -- because *some of those religious colleges permit their students to obtain a wholly secular education.* The aid to Regis and Denver, that is to say, does not necessarily support religious inculcation and spiritual transformation. Indeed, to the extent those schools do engage in such activities, the state aid may *not* subsidize such activities, under both the Federal and State Constitutions. At CCU, by contrast, virtually all education is religious in nature, and every student must participate in religious services, and thus state aid would *invariably* subsidize religious inculcation, which is unconstitutional. That's why CCU is categorically excluded -- and why it's distinguishable from Regis and Denver. This simply isn't a case of denominational discrimination. The state aid cannot be used for any religious teaching or services, full stop -- of *any* denomination, and at any school, whether it be CCU or Regis or Denver or the Univ. of Colorado. (Indeed, I assume it also cannot be used to teach the propriety or virtue of atheism, either.) -- Original message -- From: Rick Duncan [EMAIL PROTECTED] Marty: I don't think Locke controls the much different Free Ex issue in this case, but setting aside Locke, Colorado has still engaged in denominational discrimination in a Zelman-like, true private choice scholarship program. Under the EC, it is not only permissible to include pervasivlely sectarian schools in a voucher program, it is forbidden under Larson to exclude some religious colleges while including others. There is no play in the joints issue here--the EC forbids discrimination among religions. The district ct correctly recognized the Larson denominational discrimination violation, but incorrectly ruled that Colorado has a compelling interest in discriminating against some religious colleges. If Colorado had chosen to exclude all religious colleges from the program, the Larson issue would go away and we would have to decide how Locke v. Davey Lukumi and the FEC applies to a much different free exercise issue. But Colorado has chosen to include some religious colleges and to exclude others from participation in the program, and that violates the clearest command of the EC under Larson. Colorado's interest in complying with its own, very different, anti-establishment concerns under state law do not justify its violation of the core principle of the EC under the US Constitution. I think CCU should win this case under Locke Lukumi and the FEC, but I am certain it should win this case under Larson... if Larson is still the law of the land. Rick [EMAIL PROTECTED] wrote: OK, I've now read the whole opinion, and I think the court's judgment is plainly correct under governing doctrine. The crucial point is that CCU's education necessarily invovles inculcation of religious truths and spiritual transformation. A substantial portion of the 'secular' instruction its students receive is inextricably entwined with religious indoctrination. CCU stipulates that its President 'informs incoming freshmen that Everything you learn at CCU will be framed within the Christian worldview, integrating your faith and your learning.' ¶ 16. In an alumni publication, the President wrote that 'Education at CCU . . . is simply more than students could hope to find in any secular setting, because [their] education here has been structured intentionally to foster their spiritual transformation.' ¶ 20. . . . CCU admits that it requires all of its undergraduate students to attend 25 of the 30 semiweekly chapel services each semester. ¶ 37. (The label of pervasively sectarian is basically being applied only as a proxy to make this simple point about the nature of the education, i.e., that it involves both instruction on religious truth and compelled religious rituals -- something that apparently is not disputed.) OK, so if Colorado funded this education, it would be funding prayer, religious inculcation, and spiritual transformation. What follows? 1. If any of the aid programs in question is a direct aid program, or a program in which the school rather than the student applies for the aid -- something that is not clear from the bare-bones listing of the aid programs in footnote 3 -- then such state funding of religious education would violate the *federal* Constitution, per Mitchell v. Helms and countless other cases. 2. If, on the other hand, all five of the programs are a type of Zelman-like indirect aid to students, Colorado *could* fund
Re: Colorado Christian University Case: EC Compelling Interest
Fn.23 of /Larson/ seems to distinguish disparate impact from deliberate gerrymandering. The footnote is nearly a page long but the heart of it is this: The statute is not simply a facially neutral statute, the provisions of which happen to have a 'disparate impact' upon different religious organizations. On the contrary, [the section] makes explicit and deliberate distinctions between different religious organizations. Of course most distinctions are deliberate, but in the context of the facts and the rest of the opinion, I thake this to mean distinctions deliberately intended to eliminate the Unification Church and groups that were similar to it in the view of the legislature. Quoting [EMAIL PROTECTED]: Rick, with all respect, I think you're simply ignoring the rationale of the Colorado statute and constitution. Yes, Colorado permits *some* religiously affiliated colleges to participate in the programs -- it allows, e.g., aid to Regis University and the Univ. of Denver -- because *some of those religious colleges permit their students to obtain a wholly secular education.* The aid to Regis and Denver, that is to say, does not necessarily support religious inculcation and spiritual transformation. Indeed, to the extent those schools do engage in such activities, the state aid may *not* subsidize such activities, under both the Federal and State Constitutions. At CCU, by contrast, virtually all education is religious in nature, and every student must participate in religious services, and thus state aid would *invariably* subsidize religious inculcation, which is unconstitutional. That's why CCU is categorically excluded -- and why it's distinguishable from Regis and Denver. This simply isn't a case of denominational discrimination. The state aid cannot be used for any religious teaching or services, full stop -- of *any* denomination, and at any school, whether it be CCU or Regis or Denver or the Univ. of Colorado. (Indeed, I assume it also cannot be used to teach the propriety or virtue of atheism, either.) -- Original message -- From: Rick Duncan [EMAIL PROTECTED] Marty: I don't think Locke controls the much different Free Ex issue in this case, but setting aside Locke, Colorado has still engaged in denominational discrimination in a Zelman-like, true private choice scholarship program. Under the EC, it is not only permissible to include pervasivlely sectarian schools in a voucher program, it is forbidden under Larson to exclude some religious colleges while including others. There is no play in the joints issue here--the EC forbids discrimination among religions. The district ct correctly recognized the Larson denominational discrimination violation, but incorrectly ruled that Colorado has a compelling interest in discriminating against some religious colleges. If Colorado had chosen to exclude all religious colleges from the program, the Larson issue would go away and we would have to decide how Locke v. Davey Lukumi and the FEC applies to a much different free exercise issue. But Colorado has chosen to include some religious colleges and to exclude others from participation in the program, and that violates the clearest command of the EC under Larson. Colorado's interest in complying with its own, very different, anti-establishment concerns under state law do not justify its violation of the core principle of the EC under the US Constitution. I think CCU should win this case under Locke Lukumi and the FEC, but I am certain it should win this case under Larson... if Larson is still the law of the land. Rick [EMAIL PROTECTED] wrote: OK, I've now read the whole opinion, and I think the court's judgment is plainly correct under governing doctrine. The crucial point is that CCU's education necessarily invovles inculcation of religious truths and spiritual transformation. A substantial portion of the 'secular' instruction its students receive is inextricably entwined with religious indoctrination. CCU stipulates that its President 'informs incoming freshmen that Everything you learn at CCU will be framed within the Christian worldview, integrating your faith and your learning.' ¶ 16. In an alumni publication, the President wrote that 'Education at CCU . . . is simply more than students could hope to find in any secular setting, because [their] education here has been structured intentionally to foster their spiritual transformation.' ¶ 20. . . . CCU admits that it requires all of its undergraduate students to attend 25 of the 30 semiweekly chapel services each semester. ¶ 37. (The label of pervasively sectarian is basically being applied only as a proxy to make this simple point about the nature of the education, i.e., that it involves both instruction on religious truth and compelled religious rituals -- something that apparently is not disputed.)
