Re: Colorado Christian University Case: EC Compelling Interest
Okay, one last time for me too. Marty has made his point very clearly; I simply think his argument is not persuasive, nor does it deal with the Colorado statute that determines which religious colleges may participate in Colorado's scholarship program for low-income students and which religious colleges are excluded. The Colorado legislature has adopted a muti-part definition of pervasively sectarian to decide which religious colleges may participate in the scholarship plan and which may not. Some religious schools, although religious and even affiliated with a particular religious denomination, are funded because they satisfy that multi-part test and other religious colleges are excluded because they fail that multi-part test. The dist ct held (I believe correctly) that this religious classification constitutes denominational discrimination. This strikes at the core of the EC because some religious colleges are being funded and others are denied funds. The non-pervasively sectarian colleges are not secular colleges (and I doubt they would claim to be). They are religious colleges that have organized themselves in ways which satisfy that multi-part test (e.g. their funds do not come primarily or predominantly from sources advocating a particular religion). So, I guess, Marty and I will have to agree to disagree. I believe the dist ct was correct in finding denominational discrimination (although incorrect in holding that Colorado has a compelling interest which justifies denominational discrimination). Marty thinks the dist ct erred in finding denominational discrimination. Let's see how this one sorts itself out in the ct of appeals (and perhaps at the SCt). Rick Duncan Marty Lederman [EMAIL PROTECTED] wrote: OK, one last try -- apologies in advance to all those of you who have read this many times over, but obviously I'm not doing a very good job making my point. Let's put it this way: If the Colorado legislature had never enacted a law mentioning pervasively sectarian schools, the result in this case would be exactly the same. The Colorado Constitution, according to the Court, expressly prohibits the use of public funds for religious education -- period, in all schools. (I don't know whether that's a proper construction of the Colorado Constitution -- an interesting question under state law, I suppose.) Any aid going to CCU would necessarily subsidize religious education and mandatory participation in religious services. So CCU could never receive any aid -- even if no statute had ever been enacted. And that's not true of Denver and Regis -- at both of those schools, a student could readily receive the aid and use it on a wholly secular education. So those schools could participate at least some of the time, i.e., in cases where the aid will not subsidize religious indoctrination. There are, by stipulation, no such cases at CCU. Denominational discrimination has nothing to do with it. One might argue -- perhaps folks such as Rick and Mark S. and possibly Doug would argue -- that it is unconstitutional for the Colorado Constitution to prohibit subsidizing religious indoctrination in some or all of these programs. That's fair -- but it would run up against Locke in the context of indirect funding programs, and would be inconsistent with Mitchell, Bowen v. Kendrick, and numerous other precedents in the context of direct-aid programs. If one accepts, however, that Colorado can decline to subsidize faith-transformative education and ritual, as Locke suggests, then the case was rightly decided, and does not implicate Larson. - Original Message - From: Rick Duncan To: Law Religion issues for Law Academics Sent: Thursday, July 26, 2007 11:27 AM Subject: RE: Colorado Christian University Case: EC Compelling Interest Christopher Lund writes: I have a somewhat different take than Marty. My sense is that this is denominational discrimination. If Colorado say had special reporting and registration requirements, but only for pervasively sectarian schools like CCU (but not for other religious schools), that would fall under Larson, right? Isn't Larson itself the root of this problem? It was decided in 1982, when the pervasively sectarian rule was in full effect. What that rule meant was that some denominational discrimination was not just permitted, but constitutionally required. Larson does not address that wrinkle. But seeing the pervasively sectarian limitation on funding as an implicit exception to Larson's rule about denominational discrimination seems to be the only way of squaring Larson's text with the aid cases of that era. I think Prof. Lund makes several good points here. First, it is clear that the classification made by Colorado between pervasively sectarian and non-pervasively sectarian religious colleges
Re: Colorado Christian University Case: EC Compelling Interest
OK, one last try -- apologies in advance to all those of you who have read this many times over, but obviously I'm not doing a very good job making my point. Let's put it this way: If the Colorado legislature had never enacted a law mentioning pervasively sectarian schools, the result in this case would be exactly the same. The Colorado Constitution, according to the Court, expressly prohibits the use of public funds for religious education -- period, in all schools. (I don't know whether that's a proper construction of the Colorado Constitution -- an interesting question under state law, I suppose.) Any aid going to CCU would necessarily subsidize religious education and mandatory participation in religious services. So CCU could never receive any aid -- even if no statute had ever been enacted. And that's not true of Denver and Regis -- at both of those schools, a student could readily receive the aid and use it on a wholly secular education. So those schools could participate at least some of the time, i.e., in cases where the aid will not subsidize religious indoctrination. There are, by stipulation, no such cases at CCU. Denominational discrimination has nothing to do with it. One might argue -- perhaps folks such as Rick and Mark S. and possibly Doug would argue -- that it is unconstitutional for the Colorado Constitution to prohibit subsidizing religious indoctrination in some or all of these programs. That's fair -- but it would run up against Locke in the context of indirect funding programs, and would be inconsistent with Mitchell, Bowen v. Kendrick, and numerous other precedents in the context of direct-aid programs. If one accepts, however, that Colorado can decline to subsidize faith-transformative education and ritual, as Locke suggests, then the case was rightly decided, and does not implicate Larson. - Original Message - From: Rick Duncan To: Law Religion issues for Law Academics Sent: Thursday, July 26, 2007 11:27 AM Subject: RE: Colorado Christian University Case: EC Compelling Interest Christopher Lund writes: I have a somewhat different take than Marty. My sense is that this is denominational discrimination. If Colorado say had special reporting and registration requirements, but only for pervasively sectarian schools like CCU (but not for other religious schools), that would fall under Larson, right? Isn't Larson itself the root of this problem? It was decided in 1982, when the pervasively sectarian rule was in full effect. What that rule meant was that some denominational discrimination was not just permitted, but constitutionally required. Larson does not address that wrinkle. But seeing the pervasively sectarian limitation on funding as an implicit exception to Larson's rule about denominational discrimination seems to be the only way of squaring Larson's text with the aid cases of that era. I think Prof. Lund makes several good points here. First, it is clear that the classification made by Colorado between pervasively sectarian and non-pervasively sectarian religious colleges constitutes denominational discrimination. Imagine a Colorado zoning law that limited special use permits in a particular zone to colleges or universities that are not pervasively sectarian? Surely, this law violates the EC under Larson. Moreover, whatever the EC may once have said about indirect funding of pervasively sectarian schools, it is now completely clear that the EC permits indirect funding of all religious colleges and that the EC continues to prohibit denominational discrimination. In other words, the existing EC no longer speaks with a forked tongue on this issue--states may include all religious colleges in indirect scholarship programs and states may not engage in denominational discrimination. Funding issues are always difficult under the EC, but unequal funding along denominational lines continues to strike at the heart of the EC's proscription of religious establishments. If Colorado wishes to withhold funding from religious education, it should withhold funding from all religious colleges and cease its practice of discriminatory religious classifications. Or, it should accept the SCt's modern notion that a neutral private choice scholarship program funds private educational choices for everyone and does not advance or endorse any religion. 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. -- Looking for a
5th Circuit En Banc Denies Standing In Prayer Case
Yesterday, the 5th Circuit sitting en banc, in an 8-7 split, found that plaintiffs lacked standing to challenge the opening of Tangipahoa (LA) Parish School Board meetings with prayer. Plaintiffs had failed to show that they attended any of the school board meetings where the invocations were delivered. A concurring opinion criticized the Supreme Court's standing pronouncements. More on the case at Religion Clause blog http://religionclause.blogspot.com/2007/07/5th-circuit-en-banc-finds-no-standing.html Howard M. Friedman ___ 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
Christopher Lund writes: I have a somewhat different take than Marty. My sense is that this is denominational discrimination. If Colorado say had special reporting and registration requirements, but only for pervasively sectarian schools like CCU (but not for other religious schools), that would fall under Larson, right? Isn't Larson itself the root of this problem? It was decided in 1982, when the pervasively sectarian rule was in full effect. What that rule meant was that some denominational discrimination was not just permitted, but constitutionally required. Larson does not address that wrinkle. But seeing the pervasively sectarian limitation on funding as an implicit exception to Larson's rule about denominational discrimination seems to be the only way of squaring Larson's text with the aid cases of that era. I think Prof. Lund makes several good points here. First, it is clear that the classification made by Colorado between pervasively sectarian and non-pervasively sectarian religious colleges constitutes denominational discrimination. Imagine a Colorado zoning law that limited special use permits in a particular zone to colleges or universities that are not pervasively sectarian? Surely, this law violates the EC under Larson. Moreover, whatever the EC may once have said about indirect funding of pervasively sectarian schools, it is now completely clear that the EC permits indirect funding of all religious colleges and that the EC continues to prohibit denominational discrimination. In other words, the existing EC no longer speaks with a forked tongue on this issue--states may include all religious colleges in indirect scholarship programs and states may not engage in denominational discrimination. Funding issues are always difficult under the EC, but unequal funding along denominational lines continues to strike at the heart of the EC's proscription of religious establishments. If Colorado wishes to withhold funding from religious education, it should withhold funding from all religious colleges and cease its practice of discriminatory religious classifications. Or, it should accept the SCt's modern notion that a neutral private choice scholarship program funds private educational choices for everyone and does not advance or endorse any religion. 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. - Looking for a deal? Find great prices on flights and hotels with Yahoo! FareChase.___ 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.
