RE: Locke v. Davey follow-up
Do you have an electronic copy of the Salvation Army brief filed by the government? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Treene Sent: Monday, May 16, 2005 7:59 PM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up Here is the case Marc was referring to. The City appealed, and then settled the case: 221 F.Supp.2d 390 United States District Court, E.D. New York. Joan DAILY, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Anthony Richburg, Reinaldo Pagan, and Louis Ortiz, Defendants. No. C.A. CV-02-1293(DGT). Sept. 11, 2002. Public housing resident sought preliminary injunction restraining enforcement of city housing authority's policy pursuant to which she was denied her application to use community center at public housing development to conduct Bible study/grief counseling sessions to comfort residents following the events of September 11, 2001. The District Court, Trager, J., held that: (1) community center at public housing development was a nonpublic forum at times and a limited public forum at other times; (2) decision to deny resident's request constituted viewpoint discrimination; and (3) decision to deny resident's request was not reasonable in the light of purpose of the restriction. Eric W. Treene (in my personal capacity) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Marc Stern Sent: Friday, May 06, 2005 1:41 PM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up I do not have time to find the decision, but there is a New York City Housing Authority cases involving a no religious use of community rooms, which a district court struck as unconstitutional. Marc -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steve Klemetti Sent: Wednesday, May 04, 2005 9:34 AM To: Law Religion issues for Law Academics Subject: Re: Locke v. Davey follow-up [EMAIL PROTECTED] wrote: I wouldn't be so sure. Because I used to help moderate the ACLU message boards (http://forums.aclu.org), I've seen a lot of strange complaints posted including one very similar to the Volokh hypo and Brownstein corollary. I particularly recall a reverend in Oklahoma posting about a married couple in his church who receive both federal Section 8 housing assistance and a state disability check. The state of Oklahoma apparently prohibits the husband from using his disability check to tithe to the church. The couple's apartment manager also says they can't hold Bible study meetings in Section 8 housing. See the December 11, 2004 post in the thread at this link/address: http://forums6.aclu.org/messageview.cfm?catid=81threadid=7115STARTPAGE =3 http://forums6.aclu.org/messageview.cfm?catid=81threadid=7115STARTPAG E=3 The prohibition of using disability checks to make charitable contributions or tithes is unenforceable. They could not control the putting of cash into donation boxes. And the prohibition of using housing or apartments for Bible Study is unconstitution, that is prohibiting the freedom of worship and assembly. ___ 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. ___ 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
RE: Locke v. Davey follow-up
Sorry. This was sent to the group by mistake. Marc -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marc Stern Sent: Friday, July 15, 2005 2:49 PM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up Do you have an electronic copy of the Salvation Army brief filed by the government? Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Eric Treene Sent: Monday, May 16, 2005 7:59 PM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up Here is the case Marc was referring to. The City appealed, and then settled the case: 221 F.Supp.2d 390 United States District Court, E.D. New York. Joan DAILY, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Anthony Richburg, Reinaldo Pagan, and Louis Ortiz, Defendants. No. C.A. CV-02-1293(DGT). Sept. 11, 2002. Public housing resident sought preliminary injunction restraining enforcement of city housing authority's policy pursuant to which she was denied her application to use community center at public housing development to conduct Bible study/grief counseling sessions to comfort residents following the events of September 11, 2001. The District Court, Trager, J., held that: (1) community center at public housing development was a nonpublic forum at times and a limited public forum at other times; (2) decision to deny resident's request constituted viewpoint discrimination; and (3) decision to deny resident's request was not reasonable in the light of purpose of the restriction. Eric W. Treene (in my personal capacity) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Marc Stern Sent: Friday, May 06, 2005 1:41 PM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up I do not have time to find the decision, but there is a New York City Housing Authority cases involving a no religious use of community rooms, which a district court struck as unconstitutional. Marc -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steve Klemetti Sent: Wednesday, May 04, 2005 9:34 AM To: Law Religion issues for Law Academics Subject: Re: Locke v. Davey follow-up [EMAIL PROTECTED] wrote: I wouldn't be so sure. Because I used to help moderate the ACLU message boards (http://forums.aclu.org), I've seen a lot of strange complaints posted including one very similar to the Volokh hypo and Brownstein corollary. I particularly recall a reverend in Oklahoma posting about a married couple in his church who receive both federal Section 8 housing assistance and a state disability check. The state of Oklahoma apparently prohibits the husband from using his disability check to tithe to the church. The couple's apartment manager also says they can't hold Bible study meetings in Section 8 housing. See the December 11, 2004 post in the thread at this link/address: http://forums6.aclu.org/messageview.cfm?catid=81threadid=7115STARTPAGE =3 http://forums6.aclu.org/messageview.cfm?catid=81threadid=7115STARTPAG E=3 The prohibition of using disability checks to make charitable contributions or tithes is unenforceable. They could not control the putting of cash into donation boxes. And the prohibition of using housing or apartments for Bible Study is unconstitution, that is prohibiting the freedom of worship and assembly. ___ 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. ___ To post, send message to Religionlaw@lists.ucla.edu
RE: Locke v. Davey follow-up
Here is the case Marc was referring to. The City appealed, and then settled the case: 221 F.Supp.2d 390 United States District Court, E.D. New York. Joan DAILY, Plaintiff, v. NEW YORK CITY HOUSING AUTHORITY, Anthony Richburg, Reinaldo Pagan, and Louis Ortiz, Defendants. No. C.A. CV-02-1293(DGT). Sept. 11, 2002. Public housing resident sought preliminary injunction restraining enforcement of city housing authority's policy pursuant to which she was denied her application to use community center at public housing development to conduct Bible study/grief counseling sessions to comfort residents following the events of September 11, 2001. The District Court, Trager, J., held that: (1) community center at public housing development was a nonpublic forum at times and a limited public forum at other times; (2) decision to deny resident's request constituted viewpoint discrimination; and (3) decision to deny resident's request was not reasonable in the light of purpose of the restriction. Eric W. Treene (in my personal capacity) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Marc Stern Sent: Friday, May 06, 2005 1:41 PM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up I do not have time to find the decision, but there is a New York City Housing Authority cases involving a no religious use of community rooms, which a district court struck as unconstitutional. Marc -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steve Klemetti Sent: Wednesday, May 04, 2005 9:34 AM To: Law Religion issues for Law Academics Subject: Re: Locke v. Davey follow-up [EMAIL PROTECTED] wrote: I wouldn't be so sure. Because I used to help moderate the ACLU message boards (http://forums.aclu.org), I've seen a lot of strange complaints posted including one very similar to the Volokh hypo and Brownstein corollary. I particularly recall a reverend in Oklahoma posting about a married couple in his church who receive both federal Section 8 housing assistance and a state disability check. The state of Oklahoma apparently prohibits the husband from using his disability check to tithe to the church. The couple's apartment manager also says they can't hold Bible study meetings in Section 8 housing. See the December 11, 2004 post in the thread at this link/address: http://forums6.aclu.org/messageview.cfm?catid=81threadid=7115STARTPAGE =3 http://forums6.aclu.org/messageview.cfm?catid=81threadid=7115STARTPAG E=3 The prohibition of using disability checks to make charitable contributions or tithes is unenforceable. They could not control the putting of cash into donation boxes. And the prohibition of using housing or apartments for Bible Study is unconstitution, that is prohibiting the freedom of worship and assembly. ___ 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: Locke v. Davey follow-up
[EMAIL PROTECTED] wrote: I wouldn't be so sure. Because I used to help moderate the ACLU message boards (http://forums.aclu.org), I've seen a lot of strange complaints posted including one very similar to the Volokh hypo and Brownstein corollary. I particularly recall a reverend in Oklahoma posting about a married couple in his church who receive both federal Section 8 housing assistance and a state disability check. The state of Oklahoma apparently prohibits the husband from using his disability check to tithe to the church. The couple's apartment manager also says they can't hold Bible study meetings in Section 8 housing. See the December 11, 2004 post in the thread at this link/address: http://forums6.aclu.org/messageview.cfm?catid=81threadid=7115STARTPAGE=3 http://forums6.aclu.org/messageview.cfm?catid=81threadid=7115STARTPAGE=3 The prohibition of using disability checks to make charitable contributions or tithes is unenforceable. They could not control the putting of cash into donation boxes. And the prohibition of using housing or apartments for Bible Study is unconstitution, that is prohibiting the freedom of worship and assembly. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Locke v. Davey follow-up
In a message dated 5/3/2005 12:34:32 AM Eastern Standard Time, [EMAIL PROTECTED] writes: I may be mistaken, but I've never heard of AFDC statuteslimiting the use of the money to food, shelter, and the like; as best Ican tell, recipients are free to spend the money on anything, includingeducation. For whatever relevance it might have,and irrespective of the NY AFDC statutes, as a former welfare worker for the NYC welfare department, I can say that the clear understanding between workers and clients was that the use of the money is limited. But there was no formal mechanism of enforcingthis understanding. In my experience, any "enforcement" depended on the relationship between the worker and his or her client. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Locke v. Davey follow-up
In a message dated 5/3/2005 8:02:48 AM Eastern Standard Time, [EMAIL PROTECTED] writes: I take it there was an unofficial list of prohibited items? Some things spring immediately to mind; illicit drugs, alcohol, porn, gambling? This makes a certain amount of sense. Well, it was slightly, but only slightly, more complicated. First, the amount of AFDC was so inadequate that women (the client was almost always a single woman and not a single man or a family) had to struggle to use the meager funds for rent and food. Second, if the meager amount was spent and the client still had a rent or food problem, this would alertthe workerto the possibility of misspent funds. Thus, exigencies of survival were typically the informal enforcement mechanism. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Locke v. Davey follow-up
In a message dated 5/3/2005 8:41:06 AM Eastern Standard Time, [EMAIL PROTECTED] writes: As a case worker, I assume it was your duty to "take care" of the clients, wasn't it? I can imagine that there were limits to the amount and type of intervention you could enact. Can you elaborate? Let me give one further on-list response, and if no one else is interested, we can take the discussion off-list. The question about what a welfare worker'sduty was is a great question and difficultto answer. Some of my coworkers understood their duty as involving just policing their clients; others as helping them, but only minimally in orderto maintain the status quo; each worker had a caseload of approximately sixty families.Still others thought of their job as regarding their clients are people in desperate need of total care. This latter group tried often against an unsympathetic bureaucracy to nurture their clients and help them get off the dole. Unsurprisingly, workers in this latter group burnt out quickly. Just how much intervention was appropriate was determined by a procedure book of too many pages,the sympathies of one's immediate supervisor, and just how persistent an individual worker was inclined to be in orchestrating more comprehensive and sometimes unauthorized aid or virtually unauthorized aid. Bobby Robert Justin LipkinProfessor of LawWidener University School of LawDelaware ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
First of all, Congress repealed the AFDC program 9 years ago, and substituted the non-entitlement program called Temporary Assistance to Needy Families. Secnd, cash welfare payments have always been treated like wages once they are in the hands of recipients -- spend as you like, but you are subject to the state's laws re: child neglect. And welfare recipients tend to be scrutinzed more for such neglect than non-recipients. So if a welfare parent is spending too much for classes and not enough to feed his children, it may lead him into some trouble. All that said, Mark Scarberry and Doug Laycock are exactly right that the state has no legitimate purpose in singling out Bible classes as distinguished from other classes once it makes this kind of cash transfer. Such singling out would violate the constitution in a number of ways, including infringement of right to acquire information as well as free exercise of religion (and perhaps right to direct education of children, if the ban included children as well). By contrast, Locke involves expenditures targeted at higher education. The state may exclude those studies that it deems unproductive (astrology), or those that it does not want to subsidize for reasons of respect for autonomy of clergy preparation (the state may not regulate such preparation, so it may choose not to pay for it). But that sort of policy is a far cry from a discriminatory restriction on what is otherwise an unrestricted cash transfer, either in wages to a state employee or in payment of Temporary Assistance to Needy Families. Chip Lupu On 2 May 2005 at 22:08, Scarberry, Mark wrote: Here are some preliminary thoughts on Eugene's question. Though I think Locke v. Davey was incorrectly decided, it is at least plausible to say that a government education grant that can be used for clergy training involves government in supporting the training of clergy. Because direct government support for religious training -- and especially for the training of clergy -- is a high voltage historical issue that has been controversial since the Founding, the Court allowed Washington to steer clear of it in a way that discriminates against religion. But the notion that a government grant program that is not specifically for education implicates Establishment concerns when the recipient chooses to use the money for some religious purpose does not have historical resonance. Indeed, since it is likely that many people at the time of the Founding tithed (perhaps the historians can tell us whether that is true), the idea would have been outrageous that a recipient of government money (such as the salary of a federal employee or a payment to a federal contractor) could not use some of that money for religious purposes. It would have meant that many religious persons could not have been government employees or contractors. Cf. the prohibition on religious tests for federal office. Since we don't have a high voltage historical Establishment controversy, the usual rule should apply, that discrimination against religious uses of such grants violates the Free Exercise Clause. That is not to say that a grant of money for purchase specifically of food could not contain a condition requiring that it be used only for food; consider the food stamp program. But if the recipient is entitled to use the money for purposes chosen by the recipient, there should be no discrimination against religious purposes. And a fungibility approach -- saying, for example, that no one who gets food stamps can give any money to a church, because money is fungible and it might as well be the government money that is being used -- would similarly discriminate against religion. Can you imagine such a program comprehensively governing the spending of a recipient? No Playboy magazines to be purchased with other money? No concerts? No newspapers? Such regulation would violate other parts of the First Amendment, wouldn't it? Mark Scarberry Pepperdine -Original Message- From: Volokh, Eugene To: Law Religion issues for Law Academics Sent: 5/2/2005 9:33 PM Subject: RE: Locke v. Davey follow-up I may be mistaken, but I've never heard of AFDC statutes limiting the use of the money to food, shelter, and the like; as best I can tell, recipients are free to spend the money on anything, including education. But since I didn't want to assume anything about the federal AFDC scheme, I asked about a state general relief or disability plan. So let me ask again, though with this point clarified: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits -- which are otherwise usable by the recipient for any other purpose -- may not be used to pay
RE: Locke v. Davey follow-up
As I read the opinion, Locke v. Davey applied a sort of balancing test. As Mark notes, the Court found a strong and historically recognized antiestablishment interest on the part of the state. At the same time, the Court also found the free exercise burden, if any, to be slight. The Court concluded that the state's disfavor of religion was minimal and did not suggest hostility. The Court might well find a greater burden--and perhaps increased evidence of hostility--if a state were to bar welfare recipients from using their benefits for religious instruction. Note that Davey could have kept his scholarship and used it to study devotional theology, as long as he did not declare that field as his major. If I'm right, the balance tips differently in Eugene's hypothetical for each of two reasons: the state's antiestablishment interest is weaker and the burden on free exercise is greater. Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ** -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark Sent: Tuesday, May 03, 2005 12:09 AM To: 'Law Religion issues for Law Academics ' Subject: RE: Locke v. Davey follow-up Here are some preliminary thoughts on Eugene's question. Though I think Locke v. Davey was incorrectly decided, it is at least plausible to say that a government education grant that can be used for clergy training involves government in supporting the training of clergy. Because direct government support for religious training -- and especially for the training of clergy -- is a high voltage historical issue that has been controversial since the Founding, the Court allowed Washington to steer clear of it in a way that discriminates against religion. But the notion that a government grant program that is not specifically for education implicates Establishment concerns when the recipient chooses to use the money for some religious purpose does not have historical resonance. Indeed, since it is likely that many people at the time of the Founding tithed (perhaps the historians can tell us whether that is true), the idea would have been outrageous that a recipient of government money (such as the salary of a federal employee or a payment to a federal contractor) could not use some of that money for religious purposes. It would have meant that many religious persons could not have been government employees or contractors. Cf. the prohibition on religious tests for federal office. Since we don't have a high voltage historical Establishment controversy, the usual rule should apply, that discrimination against religious uses of such grants violates the Free Exercise Clause. That is not to say that a grant of money for purchase specifically of food could not contain a condition requiring that it be used only for food; consider the food stamp program. But if the recipient is entitled to use the money for purposes chosen by the recipient, there should be no discrimination against religious purposes. And a fungibility approach -- saying, for example, that no one who gets food stamps can give any money to a church, because money is fungible and it might as well be the government money that is being used -- would similarly discriminate against religion. Can you imagine such a program comprehensively governing the spending of a recipient? No Playboy magazines to be purchased with other money? No concerts? No newspapers? Such regulation would violate other parts of the First Amendment, wouldn't it? Mark Scarberry Pepperdine -Original Message- From: Volokh, Eugene To: Law Religion issues for Law Academics Sent: 5/2/2005 9:33 PM Subject: RE: Locke v. Davey follow-up I may be mistaken, but I've never heard of AFDC statutes limiting the use of the money to food, shelter, and the like; as best I can tell, recipients are free to spend the money on anything, including education. But since I didn't want to assume anything about the federal AFDC scheme, I asked about a state general relief or disability plan. So let me ask again, though with this point clarified: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits -- which are otherwise usable by the recipient for any other purpose -- may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene -Original Message- From
Re: Locke v. Davey follow-up
Lupu wrote: Such singling out would violate the constitution in a number of ways, including infringement of right to acquire information as well as free exercise of religion (and perhaps right to direct education of children, if the ban included children as well). Perhaps I'm putting my ignorance on display, but I wasn't aware that there was a constitutional right to the aquisition of information. Can you give me more info? Jean Dudley ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
I wonder: Would it indeed, given Locke, be unconstitutional for the state to bar all studies which in effect are focused on devotional theology, setting aside the major? (Imagine a cap on the number of such classes you could take.) It would surprise me if major became a constitutionally significant category. As to the state's antiestablishment being weaker, why? In both instances, the state is claiming an interest in keeping tax money from flowing, even as a result of private choice, to religious education (or, in Alan's modification, in which the state barred the religious donation or tithing of aid money, to churches). Why can't the state assert that its interest is identical, and identically strong, in both contexts? Eugene Dan Conkle writes: As I read the opinion, Locke v. Davey applied a sort of balancing test. As Mark notes, the Court found a strong and historically recognized antiestablishment interest on the part of the state. At the same time, the Court also found the free exercise burden, if any, to be slight. The Court concluded that the state's disfavor of religion was minimal and did not suggest hostility. The Court might well find a greater burden--and perhaps increased evidence of hostility--if a state were to bar welfare recipients from using their benefits for religious instruction. Note that Davey could have kept his scholarship and used it to study devotional theology, as long as he did not declare that field as his major. If I'm right, the balance tips differently in Eugene's hypothetical for each of two reasons: the state's antiestablishment interest is weaker and the burden on free exercise is greater. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
I appreciate Chip's clarifying that welfare payments have traditionally been treated as wages -- but his comment prompted a few thoughts. First, if we are focusing on the real world consequences of the hypothetical policy, I have never heard of a church or synagogue denying membership or access to Bible study classes to an indigent person on welfare. Am I wrong about this? My synagogue certainly would not deny access to an indigent person. It doesn't cost much to open the pews or a Bible study class to the poor. And again, if my synagogue is at all representative, the problem is getting people to attend the classes we offer -- over enrollment is rarely a problem. If I'm right about this, then the free exercise and right to know arguments must be based on the welfare recipients not wanting to reveal their economic status to the clergy or administrator at their house of worship -- or the welfare recipients not wanting charity from their religious community. There is still a burden here, but it is a bit more attenuated. Second, while welfare payments may traditionally have been treated just like wages, I'm not sure that they have to be. I have always thought the state had no constitutionally cognizable interest in the way its employees spend their wages. There is nothing the state can do to change that. But it seems to me that the way welfare payments are understood depends on what the government intends its largess to be used for. If the federal government or the state want welfare benefits to be used for particular purposes, they can change the meaning of their welfare program -- and there is nothing in the constitution that prohibits them from doing so. There may be something of an analogy to Rosenberger here. If a public university gives unrestricted funds to all students groups and disclaims any interest in, or responsibility for, the way the money is used, certain constitutional constraints limit the way the state may allocate these funds or regulate their use. But the university can change the nature of its subsidy program at its discretion -- and that in turn would change the constitutional analysis. So my question is -- suppose the government suggests that welfare payments are intended to serve certain goals (food, shelter, medical care, job training etc.) It allows welfare recipients to spend the money it gives them to attend classes that are job related -- but not Bible study classes -- for any of a variety of reasons: because the state wants to monitor classes welfare recipients pay to attend to see if they really help prepare people for getting jobs and it does not want to do that to Bible classes, because the state does not think studying the Bible is terribly useful for job training purposes, because churches and synagogues will allow welfare recipients to attend the classes for free in any case, and because the state prefers not to subsidize churches and synagogues even indirectly (for a variety of separationist reasons). Is the refusal to permit welfare recipients to use their payments to attend Bible study class still unconstitutional under this scenerio? Or at least, does this make it a closer question? This hypo does not respond to Doug's argument about welfare recipients using their own funds for religious purposes. The best manipulation of the hypo I can think of to respond to that issue is to have the state say: We only provide welfare for essentials to those who can not afford material necessities on their own. To the extent that we learn a welfare recipient has private assets or other sources of income that are available to be used for non-essentials, we will reduce their welfare payment accordingly. It may be that man does not live on bread alone -- but that is all that we are willing to subsidize. Alan Brownstein UC Davis First of all, Congress repealed the AFDC program 9 years ago, and substituted the non-entitlement program called Temporary Assistance to Needy Families. Secnd, cash welfare payments have always been treated like wages once they are in the hands of recipients -- spend as you like, but you are subject to the state's laws re: child neglect. And welfare recipients tend to be scrutinzed more for such neglect than non-recipients. So if a welfare parent is spending too much for classes and not enough to feed his children, it may lead him into some trouble. All that said, Mark Scarberry and Doug Laycock are exactly right that the state has no legitimate purpose in singling out Bible classes as distinguished from other classes once it makes this kind of cash transfer. Such singling out would violate the constitution in a number of ways, including infringement of right to acquire information as well as free exercise of religion (and perhaps right to direct education of children, if the ban included children as well). By contrast, Locke involves expenditures targeted at higher education. The state may exclude
RE: Locke v. Davey follow-up
I appreciate Mark's suggestion, but I don't quite understand the high voltage historical issue test. If the high voltage historical issue test allows the government to discriminatorily exclude religious uses only when those particular kinds of programs had led to huge debates in the past, then I think it wouldn't justify the exclusion in Locke. To my knowledge, there had been few debates about nondiscriminatory private-choice grants to college students; I don't know if there were any such grant programs before the GI Bill, but in any event I don't know of huge debates about them throughout American history. Of course, if the high voltage historical issue test lets the government define the scope of the historical controversy at a higher level of abstraction -- for instance, to include debates about discriminatory programs, or direct aid programs -- then it may well justify the exclusion in Locke. But why wouldn't it justify the exclusion in my hypo? The high voltage debates about discriminatory grant systems and direct government subsidies involved the funding of religious services (cf. the Virginia Assessment controversy) as well as of K-12 religious education. So if you look at things at that level of generality -- if you set aside the distinction between private choice programs and discriminatory aid programs such as the Virginia plan -- the high voltage historical issue encompasses contributions to churches, and presumably spending for Bible study. Now Mark is right that the Founders would probably have been outraged by the idea that a recipient of government money (such as the salary of a federal employee or a payment to a federal contractor) could not use some of that money for religious purposes. But once we generalize from *that*, I'm not sure we know which direction to generalize to. I don't believe the Founders were that familiar with programs of general monetary payments to poor people -- would they have been outraged by the idea that such payments couldn't be used for religious purposes? Maybe. But maybe they would have been outraged by the idea that a general private-choice nondiscriminatory education grant, which was in practice nearly always used for secular education -- another program with which they weren't that familiar -- could be by law limited to exclude religious education. So it seems to me that neither the high voltage historical issue standard or the Founders would have been outraged standard is that helpful once we go beyond very close analogies. And since the program in Locke is far from a close analogy to the Virginia assessment program, or to the proposed school funding programs that aroused opposition in the 1800s, I'm not sure what voltage and outrage can really tell us here. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark Sent: Monday, May 02, 2005 10:09 PM To: 'Law Religion issues for Law Academics ' Subject: RE: Locke v. Davey follow-up Here are some preliminary thoughts on Eugene's question. Though I think Locke v. Davey was incorrectly decided, it is at least plausible to say that a government education grant that can be used for clergy training involves government in supporting the training of clergy. Because direct government support for religious training -- and especially for the training of clergy -- is a high voltage historical issue that has been controversial since the Founding, the Court allowed Washington to steer clear of it in a way that discriminates against religion. But the notion that a government grant program that is not specifically for education implicates Establishment concerns when the recipient chooses to use the money for some religious purpose does not have historical resonance. Indeed, since it is likely that many people at the time of the Founding tithed (perhaps the historians can tell us whether that is true), the idea would have been outrageous that a recipient of government money (such as the salary of a federal employee or a payment to a federal contractor) could not use some of that money for religious purposes. It would have meant that many religious persons could not have been government employees or contractors. Cf. the prohibition on religious tests for federal office. Since we don't have a high voltage historical Establishment controversy, the usual rule should apply, that discrimination against religious uses of such grants violates the Free Exercise Clause. That is not to say that a grant of money for purchase specifically of food could not contain a condition requiring that it be used only for food; consider the food stamp program. But if the recipient is entitled to use the money for purposes chosen by the recipient, there should be no discrimination against religious purposes. And a fungibility approach -- saying
RE: Locke v. Davey follow-up
Needless to say, the precedential effect of Locke v. Davey is unclear--that's what makes the hypothetical interesting--but I believe that the holding can reasonably and properly be confined in the manner I have suggested. The Court emphasized that the burden on Davey was minimal, and it also emphasized that the state had distinctive antiestablishment concerns that were linked to historical disputes about state-funded clergy. Dan Conkle -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, May 03, 2005 11:22 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up I wonder: Would it indeed, given Locke, be unconstitutional for the state to bar all studies which in effect are focused on devotional theology, setting aside the major? (Imagine a cap on the number of such classes you could take.) It would surprise me if major became a constitutionally significant category. As to the state's antiestablishment being weaker, why? In both instances, the state is claiming an interest in keeping tax money from flowing, even as a result of private choice, to religious education (or, in Alan's modification, in which the state barred the religious donation or tithing of aid money, to churches). Why can't the state assert that its interest is identical, and identically strong, in both contexts? Eugene Dan Conkle writes: As I read the opinion, Locke v. Davey applied a sort of balancing test. As Mark notes, the Court found a strong and historically recognized antiestablishment interest on the part of the state. At the same time, the Court also found the free exercise burden, if any, to be slight. The Court concluded that the state's disfavor of religion was minimal and did not suggest hostility. The Court might well find a greater burden--and perhaps increased evidence of hostility--if a state were to bar welfare recipients from using their benefits for religious instruction. Note that Davey could have kept his scholarship and used it to study devotional theology, as long as he did not declare that field as his major. If I'm right, the balance tips differently in Eugene's hypothetical for each of two reasons: the state's antiestablishment interest is weaker and the burden on free exercise is greater. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
But why limit it to situations involving historical disputes about state-funded clergy *education*? There have also been historical disputes about state funding of clergy practice, not just clergy education (see the Assessment controversy). If private-choice education grant programs such as the one in Locke may exclude use for religious study because otherwise tax money will flow for clergy education, why can't programs of aid to the poor or the disabled exclude religion because otherwise tax money will flow to the clergy (via donations or Bible Study tuition payments)? Why isn't the latter as close as the former to the historical disputes? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O. Sent: Tuesday, May 03, 2005 9:56 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up Needless to say, the precedential effect of Locke v. Davey is unclear--that's what makes the hypothetical interesting--but I believe that the holding can reasonably and properly be confined in the manner I have suggested. The Court emphasized that the burden on Davey was minimal, and it also emphasized that the state had distinctive antiestablishment concerns that were linked to historical disputes about state-funded clergy. Dan Conkle -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, May 03, 2005 11:22 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up I wonder: Would it indeed, given Locke, be unconstitutional for the state to bar all studies which in effect are focused on devotional theology, setting aside the major? (Imagine a cap on the number of such classes you could take.) It would surprise me if major became a constitutionally significant category. As to the state's antiestablishment being weaker, why? In both instances, the state is claiming an interest in keeping tax money from flowing, even as a result of private choice, to religious education (or, in Alan's modification, in which the state barred the religious donation or tithing of aid money, to churches). Why can't the state assert that its interest is identical, and identically strong, in both contexts? Eugene Dan Conkle writes: As I read the opinion, Locke v. Davey applied a sort of balancing test. As Mark notes, the Court found a strong and historically recognized antiestablishment interest on the part of the state. At the same time, the Court also found the free exercise burden, if any, to be slight. The Court concluded that the state's disfavor of religion was minimal and did not suggest hostility. The Court might well find a greater burden--and perhaps increased evidence of hostility--if a state were to bar welfare recipients from using their benefits for religious instruction. Note that Davey could have kept his scholarship and used it to study devotional theology, as long as he did not declare that field as his major. If I'm right, the balance tips differently in Eugene's hypothetical for each of two reasons: the state's antiestablishment interest is weaker and the burden on free exercise is greater. ___ 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: Locke v. Davey follow-up
As Tom Berg has effectively pointed out, the opinion in Davey is schizophrenic. It relies heavily on the state's interest in not funding the training of clergy; at one point, it says that is the only interest at issue. That suggests that the case is confined to the clergy and all other religious uses of government grants are outside its scope. But it also relies on the claim that there is no burden because the government is free to choose what it is willing to subsidize. That argument has almost infinite application, and as Eugene keeps repeating, nothing can be logically distinguished from it. Which argument is the holding? Well, in the first year of law school, the narrow clergy-only rationale is the holding. Those were the facts, and everything else is dicta. In the real world, there were seven votes for both halves of the opinion, and three of them would have to support any distinction to change the result. Four of the seven think it is broadly unconstitutional to let private citizens use government funds for religious purposes; they are not likely to join the first opinion distinguishing Davey. If that is right, then any distinction has to capture all three of Kennedy, O'Connor, and Rehnquist (or their replacements). I would be surprised if all three of them say the opinion is only about the clergy. Rehnquist of course has been pushing his idea that government can choose what it is willing to subsidize, and protect that choice with prophylactic rules, for more than two decades. The distinction when it finally comes may not be very logical. But if states push the envelope in the ways suggested by Eugene's hypotheticals, eventually the Court will shrink from what seem to be extreme results, and it will draw an illogical distinction if it can't think of a logical one. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O. Sent: Tuesday, May 03, 2005 11:56 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up Needless to say, the precedential effect of Locke v. Davey is unclear--that's what makes the hypothetical interesting--but I believe that the holding can reasonably and properly be confined in the manner I have suggested. The Court emphasized that the burden on Davey was minimal, and it also emphasized that the state had distinctive antiestablishment concerns that were linked to historical disputes about state-funded clergy. Dan Conkle -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, May 03, 2005 11:22 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up I wonder: Would it indeed, given Locke, be unconstitutional for the state to bar all studies which in effect are focused on devotional theology, setting aside the major? (Imagine a cap on the number of such classes you could take.) It would surprise me if major became a constitutionally significant category. As to the state's antiestablishment being weaker, why? In both instances, the state is claiming an interest in keeping tax money from flowing, even as a result of private choice, to religious education (or, in Alan's modification, in which the state barred the religious donation or tithing of aid money, to churches). Why can't the state assert that its interest is identical, and identically strong, in both contexts? Eugene Dan Conkle writes: As I read the opinion, Locke v. Davey applied a sort of balancing test. As Mark notes, the Court found a strong and historically recognized antiestablishment interest on the part of the state. At the same time, the Court also found the free exercise burden, if any, to be slight. The Court concluded that the state's disfavor of religion was minimal and did not suggest hostility. The Court might well find a greater burden--and perhaps increased evidence of hostility--if a state were to bar welfare recipients from using their benefits for religious instruction. Note that Davey could have kept his scholarship and used it to study devotional theology, as long as he did not declare that field as his major. If I'm right, the balance tips differently in Eugene's hypothetical for each of two reasons: the state's antiestablishment interest is weaker and the burden on free exercise is greater. ___ 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
RE: Locke v. Davey follow-up
Absolutely; it seems to me that this would indeed raise the same issue. Yet it strikes me that both are quite similar to the problem upheld in Locke (though the bar on spending for religious study is most obviously similar). What do people think of Alan's hypo, and how it bears on the question? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of A.E. Brownstein Sent: Monday, May 02, 2005 2:22 PM To: Law Religion issues for Law Academics Subject: Re: Locke v. Davey follow-up I think it is a good hypo, Eugene. Perhaps one way to think about an answer is to ask a different question -- Would it be unconstitutional for the state to bar a welfare recipient from using his or her welfare payment to pay church or synagogue membership dues? Alan Brownstein UC Davis At 12:59 PM 5/2/2005 -0700, you wrote: A question (based on, but not quite identical to) Justice Scalia's hypothetical in the dissent: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
I think Locke is an excellent example of what happens when an underlying premise is played out to the point where its infirmities become glaring. I think the real problem lies here: Neutrality under the religion clauses has come to mean the same kind of neutrality that is applied under freedom of speech and equal protection. If one carries this approach to its logical extension, then Locke looks wrong --maybe even is wrong. Or, the holding must be so minimized as to make the case a cipher. I think rejecting Locke as analytically flawed because it departs from doctrine that requires a horizontally consistent definition of neutrality really does make analytical sense under the current doctrine. Nevertheless, this leads to several practical and constitutional difficulties: 1. The neutrality is neutrality is neutrality approach ignores the ways in which religion really is different in kind, not just another idea or viewpoint or constituency. We already see the utter weirdness of acting like religion is just another viewpoint or insisting that words like under God are not religious if embedded in the context of a patriotic ritual --like a crèche surrounded by a and wishing well. 2. As Doug says, following this logic might lead to extreme results in terms of creating a much wider category of mandatory funding scenarios. (But again, it is indeed hard to square with other case law, now that the Establishment Clause has withered as a unique defense to non-funding of religious ends. In fact, without the old E.C. defense to excluding religion its exclusion actually becomes an E.C. problem because it is hostile to religion!) 3. If the Court carries this all forward, then it not only may require (versus allow, as in Zelman)funding of religion in all cases where neutrality would be thereby satisfied (per Rosenberger) but also might require that religious recipients be excused from important conditions on the funding (Dale). The new case on the Solomon Amendment comes immediately to mind. *State and federal fiscs being what they are --tight -- the implications may be profound. *Non-profit budgets are terribly tight as well --If folks will rush to fill classroom space for community activities, and they do, they certainly will learn the ropes of filling out applications for state and federal funds. It will be interesting to see what Justice Scalia in particular does with this last extension of Dale --i.e. you must give me the money without the conditions-- given his concern in Smith about minorities undermining democracy, and given his sense (prayer cases) that compulsion means far more than psycho-social coercion. It will also be interesting to see what a post-Rehnquist Court will do in the funding scenario, given his reluctance to view non-funding as coercive, discriminatory, or otherwise an undue burden. Just refuse the money has been his fairly consistent response to such claims. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Tuesday, May 03, 2005 10:07 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up As Tom Berg has effectively pointed out, the opinion in Davey is schizophrenic. It relies heavily on the state's interest in not funding the training of clergy; at one point, it says that is the only interest at issue. That suggests that the case is confined to the clergy and all other religious uses of government grants are outside its scope. But it also relies on the claim that there is no burden because the government is free to choose what it is willing to subsidize. That argument has almost infinite application, and as Eugene keeps repeating, nothing can be logically distinguished from it. Which argument is the holding? Well, in the first year of law school, the narrow clergy-only rationale is the holding. Those were the facts, and everything else is dicta. In the real world, there were seven votes for both halves of the opinion, and three of them would have to support any distinction to change the result. Four of the seven think it is broadly unconstitutional to let private citizens use government funds for religious purposes; they are not likely to join the first opinion distinguishing Davey. If that is right, then any distinction has to capture all three of Kennedy, O'Connor, and Rehnquist (or their replacements). I would be surprised if all three of them say the opinion is only about the clergy. Rehnquist of course has been pushing his idea that government can choose what it is willing to subsidize, and protect that choice with prophylactic rules, for more than two decades. The distinction when it finally comes may not be very logical. But if states push the envelope in the ways suggested by Eugene's hypotheticals, eventually the Court will shrink from what seem to be extreme results
RE: Locke v. Davey follow-up
Interesting, but if one doesn't accept neutrality as nondiscrimination, then wouldn't this lead to still more difficulties? In particular, if Locke is accepted on the theory that the Free Exercise Clause does *not* require nondiscrimination against religion, what then would happen in my hypo (or Alan's modification of my hypo): The government gives people money (as general relief, disability relief, and the like), but says you may not use it for religious study or even you may not donate it to religious institutions? If there's no nondiscrimination-against-religion requirement, would such a discriminatory condition be constitutional? Or if it would be unconstitutional, why would it be unconstitutional? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Toni M. Massaro Sent: Tuesday, May 03, 2005 10:58 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up I think Locke is an excellent example of what happens when an underlying premise is played out to the point where its infirmities become glaring. I think the real problem lies here: Neutrality under the religion clauses has come to mean the same kind of neutrality that is applied under freedom of speech and equal protection. If one carries this approach to its logical extension, then Locke looks wrong --maybe even is wrong. Or, the holding must be so minimized as to make the case a cipher. I think rejecting Locke as analytically flawed because it departs from doctrine that requires a horizontally consistent definition of neutrality really does make analytical sense under the current doctrine. Nevertheless, this leads to several practical and constitutional difficulties: 1. The neutrality is neutrality is neutrality approach ignores the ways in which religion really is different in kind, not just another idea or viewpoint or constituency. We already see the utter weirdness of acting like religion is just another viewpoint or insisting that words like under God are not religious if embedded in the context of a patriotic ritual --like a crèche surrounded by a and wishing well. 2. As Doug says, following this logic might lead to extreme results in terms of creating a much wider category of mandatory funding scenarios. (But again, it is indeed hard to square with other case law, now that the Establishment Clause has withered as a unique defense to non-funding of religious ends. In fact, without the old E.C. defense to excluding religion its exclusion actually becomes an E.C. problem because it is hostile to religion!) 3. If the Court carries this all forward, then it not only may require (versus allow, as in Zelman)funding of religion in all cases where neutrality would be thereby satisfied (per Rosenberger) but also might require that religious recipients be excused from important conditions on the funding (Dale). The new case on the Solomon Amendment comes immediately to mind. *State and federal fiscs being what they are --tight -- the implications may be profound. *Non-profit budgets are terribly tight as well --If folks will rush to fill classroom space for community activities, and they do, they certainly will learn the ropes of filling out applications for state and federal funds. It will be interesting to see what Justice Scalia in particular does with this last extension of Dale --i.e. you must give me the money without the conditions-- given his concern in Smith about minorities undermining democracy, and given his sense (prayer cases) that compulsion means far more than psycho-social coercion. It will also be interesting to see what a post-Rehnquist Court will do in the funding scenario, given his reluctance to view non-funding as coercive, discriminatory, or otherwise an undue burden. Just refuse the money has been his fairly consistent response to such claims. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Tuesday, May 03, 2005 10:07 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up As Tom Berg has effectively pointed out, the opinion in Davey is schizophrenic. It relies heavily on the state's interest in not funding the training of clergy; at one point, it says that is the only interest at issue. That suggests that the case is confined to the clergy and all other religious uses of government grants are outside its scope. But it also relies on the claim that there is no burden because the government is free to choose what it is willing to subsidize. That argument has almost infinite application, and as Eugene keeps repeating, nothing can be logically distinguished from it. Which argument
RE: Locke v. Davey follow-up
I don't quite understand this. Steve himself says A state may not want to use public funds to support religion and religious training. And it can constitutionally do so. In my hypothetical, that is *precisely* what the state is trying to do. Now perhaps Steve's unreality point is simply that the provision is unlikely to be enacted. That's hard to tell; the U.S. is a big country, and lots of things that are unlikely generally may get enacted in one or another location under one or another circumstance. I realize that some hypos are so outlandish that they shed little light on the question. But is this really *that* outlandish? Is it really pointless to consider what would happen when a state is genuinely committed to the *very sentiments expressed in Steve's own quote*, and just takes them further than Washington did in Locke? Finally, as to looking to the principles actually used by the Court, I would have thought that we ought to ask them to be logical -- perhaps not perfectly crisp and clear in all instances, but still generally logical. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Tuesday, May 03, 2005 10:31 AM To: Law Religion issues for Law Academics Subject: Re: Locke v. Davey follow-up The reason I find Eugene's hypo uninteresting is the unreality of it. Of course, I say this despite having seen many things I once thought from the realm of fantasy come to pass. There is a difference between a tax and subsidy. There is a difference between a direct payment and an indirect one. There is a difference between programs with conditions and direct requirements without the inducements. But, in every instance, the edges are blurry and if pushed too far, one thing has the undesired effect that the distinction was trying to make. A state may not want to use public funds to support religion and religious training. And it can constitutionally do so. The fact that the intention can be circumvented or that the line drawn is imperfect or that some distinctions seem illogical or are in fact illogical simply means that the world is complex and that relationships of things one to another are tangled and weblike, not subject to linear logic. Can one come up with a principled approach? The court tries to do so. Sometimes the principles are as vague as balancing competing interests of conflicting demands; or sometimes principles will conflict (speech v. establishment a la Rosenberger); or sometimes the situation just requires that the case and only the case before it be decided; or sometimes the principles are not hard-edged (like direct and indirect); or sometimes they relate to history and tradition; and sometimes they are teleological. Sometimes the principles are even logical or susceptible of syllogistic application. Indeed, most cases are like that. But not the ones on the edges. We should not be looking for logic in freedom or religion as Eugene seems to be wanting us to do, but we should be looking to the principles actually used by the Court. We make a mistake when we look just to facts or to holding or to logic. As Doug Laycock has pointed out better than I could have. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8567 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/ A word is dead When it is said, Some say. I say it just Begins to live That day. Emily Dickinson 1872 ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Locke v. Davey follow-up
"Finally, as to looking to the principles actually used by the Court, I would have thought that we ought to ask them to be logical -- perhaps not perfectly crisp and clear in all instances, but still generally logical." Eugene, Eugene: Surely you jest. Don't forget to take a look at the very first line of the opinion: "CHIEF JUSTICE REHNQUIST delivered the opinion of the Court." As with most CJ opinions, especially those involving difficult constitutional questions, the whole objectiveis to ensure that there is no internal "logic" at all, so that the Court is free to decidethe next cases any way it wishes. (Another classic in this vein: the indefensible Boy Scouts v. Dale, which makes no doctrinal sense and that can be read either to make mincemeat of a long line of previous cases, or as a one-time ticket good for this day and this train only --probably best viewed as the latter, as the Solomon Amendment case will demonstrate.) Indeed, much to what I imagine is Eugene's chagrin, it turns out that the entire Court is becoming much less doctrinal in recent Terms when it comes to constitutional decisions, and much more, shall we say, discursive, in a Rehnquist/O'Connor/Kennedy sort of way. Scalia and (sometimes) Souter and Thomas might be exceptions. But surely, the Chief's opinions are, quite intentionally, the most inscrutable of all. Locke v. Davey is a Chief Special.It goes out of its way to throw together, willy-nilly,a bunch of different variables and factors, any one (or two, or three) of which could be ignored, or embraced, next time around. That's no accident -- it's how he designs it. Just take a look at the one-sentence footnote 4, which apparently purports to resolveseveral inscrutable constitutional questions -- concerning unconstitutional conditions, and the "segregation" requirements of, e.g., Rustand LWV -- that many very bright folks (e.g., Seth Kreimer, Kathleen Sullivan, Mitch Berman, Doug in his Harvard piece) have spent hundreds upon hundreds of pages trying to unravel (and that we struggled with for weeks on this list prior to the Court's decision). The judgment in Locke can be defended. But in order to do so, one needs a much richer account than Rehnquist would ever dream of providing with respect to at least two things: (i) an explanation of exactly why Washington might wish not to fund divinity studies (or why the state in your hypo, Eugene, would single out religion for restriction) -- by which I mean something much more than the simple and unhelpful "because there's atradition of not using government fundsto subsidize the church"; and (ii) a more fullsome understanding of which sorts of government reasons for singling out religion are, and are not, constitutionally problematic. I'm working on it -- and I'll get back to you in a few years . . . . - Original Message - From: "Volokh, Eugene" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Tuesday, May 03, 2005 2:09 PM Subject: RE: Locke v. Davey follow-up I don't quite understand this. Steve himself says "A state maynot want to use public funds to support religion and religious training.And it can constitutionally do so." In my hypothetical, that is*precisely* what the state is trying to do.Now perhaps Steve's "unreality" point is simply that theprovision is unlikely to be enacted. That's hard to tell; the U.S. is abig country, and lots of things that are unlikely generally may getenacted in one or another location under one or another circumstance. Irealize that some hypos are so outlandish that they shed little light onthe question. But is this really *that* outlandish? Is it reallypointless to consider what would happen when a state is genuinelycommitted to the *very sentiments expressed in Steve's own quote*, andjust takes them further than Washington did in Locke?Finally, as to looking to the principles actually used by theCourt, I would have thought that we ought to ask them to be logical --perhaps not perfectly crisp and clear in all instances, but stillgenerally logical.Eugene-Original Message-From: [EMAIL PROTECTED][mailto:[EMAIL PROTECTED] On Behalf Of Steven JamarSent: Tuesday, May 03, 2005 10:31 AMTo: Law Religion issues for Law AcademicsSubject: Re: Locke v. Davey follow-upThe reason I find Eugene's hypo uninteresting is the unreality of it.Of course, I say this despite having seen many things I once thoughtfrom the realm of fantasy come to pass.There is a difference between a tax and subsidy.There is a difference between a direct payment and an indirect one.There is a difference between programs with conditions and directrequirements without the inducements.But, in every instance, the edges are blurry and if pushed too far, onething has the undesired effect that the distinction was
RE: Locke v. Davey follow-up
I think that every failure to accommodate does not constitute discrimination against -- not that there is no such thing as a failure to accommodate that rises to the level of persecution, hostility or selective burdening of religion that crosses constitutional lines. I think the Court's emerging account of neutrality does not capture this nuance. As for the hypo --a very tough one, as are all of the unconstitutional conditions hypos -- I would first ask for the government's reasons for the condition along with other factors that weigh in this balance. It may well be that there is no good reason for drawing this line other than hostility. Romer-like My point about neutrality being an insufficient tool is that I think the government should have more room to say because this is religious and I wish to respect a line between the sacred and the secular by avoiding the former's support categorically than because this is indecent or has sexual content orand I do not like it Also, neutrality has a liberal equality ring to it, and I think our religious selves are more resistant to liberal methodologies than other aspects. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, May 03, 2005 11:04 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up Interesting, but if one doesn't accept neutrality as nondiscrimination, then wouldn't this lead to still more difficulties? In particular, if Locke is accepted on the theory that the Free Exercise Clause does *not* require nondiscrimination against religion, what then would happen in my hypo (or Alan's modification of my hypo): The government gives people money (as general relief, disability relief, and the like), but says you may not use it for religious study or even you may not donate it to religious institutions? If there's no nondiscrimination-against-religion requirement, would such a discriminatory condition be constitutional? Or if it would be unconstitutional, why would it be unconstitutional? Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Toni M. Massaro Sent: Tuesday, May 03, 2005 10:58 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up I think Locke is an excellent example of what happens when an underlying premise is played out to the point where its infirmities become glaring. I think the real problem lies here: Neutrality under the religion clauses has come to mean the same kind of neutrality that is applied under freedom of speech and equal protection. If one carries this approach to its logical extension, then Locke looks wrong --maybe even is wrong. Or, the holding must be so minimized as to make the case a cipher. I think rejecting Locke as analytically flawed because it departs from doctrine that requires a horizontally consistent definition of neutrality really does make analytical sense under the current doctrine. Nevertheless, this leads to several practical and constitutional difficulties: 1. The neutrality is neutrality is neutrality approach ignores the ways in which religion really is different in kind, not just another idea or viewpoint or constituency. We already see the utter weirdness of acting like religion is just another viewpoint or insisting that words like under God are not religious if embedded in the context of a patriotic ritual --like a crèche surrounded by a and wishing well. 2. As Doug says, following this logic might lead to extreme results in terms of creating a much wider category of mandatory funding scenarios. (But again, it is indeed hard to square with other case law, now that the Establishment Clause has withered as a unique defense to non-funding of religious ends. In fact, without the old E.C. defense to excluding religion its exclusion actually becomes an E.C. problem because it is hostile to religion!) 3. If the Court carries this all forward, then it not only may require (versus allow, as in Zelman)funding of religion in all cases where neutrality would be thereby satisfied (per Rosenberger) but also might require that religious recipients be excused from important conditions on the funding (Dale). The new case on the Solomon Amendment comes immediately to mind. *State and federal fiscs being what they are --tight -- the implications may be profound. *Non-profit budgets are terribly tight as well --If folks will rush to fill classroom space for community activities, and they do, they certainly will learn the ropes of filling out applications for state and federal funds. It will be interesting to see what Justice Scalia in particular does with this last extension of Dale --i.e. you must give me the money without the conditions-- given his
RE: Locke v. Davey follow-up
But this isn't just a standard failure to accommodate, as in Smith, Bob Jones, U.S. v. Lee, and the like -- this *is* discrimination against religion (both the hypo and the program in Locke). One might argue that it's justifiable discrimination, but it's discrimination. As to the government's reasons for the condition, both in Locke and in my hypo, the government is indeed saying because this is religious and we wish to respect what we see as taxpayers' right not to fund the sacred. Is that good enough? Toni Massaro writes: I think that every failure to accommodate does not constitute discrimination against -- not that there is no such thing as a failure to accommodate that rises to the level of persecution, hostility or selective burdening of religion that crosses constitutional lines. I think the Court's emerging account of neutrality does not capture this nuance. As for the hypo --a very tough one, as are all of the unconstitutional conditions hypos -- I would first ask for the government's reasons for the condition along with other factors that weigh in this balance. It may well be that there is no good reason for drawing this line other than hostility. Romer-like My point about neutrality being an insufficient tool is that I think the government should have more room to say because this is religious and I wish to respect a line between the sacred and the secular by avoiding the former's support categorically than because this is indecent or has sexual content orand I do not like it Also, neutrality has a liberal equality ring to it, and I think our religious selves are more resistant to liberal methodologies than other aspects. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
Title: Message Touche; I should have said that there ought to be logic at least to our theories of what the right rule here should be, and to the frameworks that we propose as tools for organizing the caselaw and for deciding future cases.. -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Tuesday, May 03, 2005 11:41 AMTo: Law Religion issues for Law AcademicsSubject: Re: Locke v. Davey follow-up "Finally, as to looking to the principles actually used by the Court, I would have thought that we ought to ask them to be logical -- perhaps not perfectly crisp and clear in all instances, but still generally logical." Eugene, Eugene: Surely you jest. Don't forget to take a look at the very first line of the opinion: "CHIEF JUSTICE REHNQUIST delivered the opinion of the Court." As with most CJ opinions, especially those involving difficult constitutional questions, the whole objectiveis to ensure that there is no internal "logic" at all, so that the Court is free to decidethe next cases any way it wishes. (Another classic in this vein: the indefensible Boy Scouts v. Dale, which makes no doctrinal sense and that can be read either to make mincemeat of a long line of previous cases, or as a one-time ticket good for this day and this train only --probably best viewed as the latter, as the Solomon Amendment case will demonstrate.) Indeed, much to what I imagine is Eugene's chagrin, it turns out that the entire Court is becoming much less doctrinal in recent Terms when it comes to constitutional decisions, and much more, shall we say, discursive, in a Rehnquist/O'Connor/Kennedy sort of way. Scalia and (sometimes) Souter and Thomas might be exceptions. But surely, the Chief's opinions are, quite intentionally, the most inscrutable of all. Locke v. Davey is a Chief Special.It goes out of its way to throw together, willy-nilly,a bunch of different variables and factors, any one (or two, or three) of which could be ignored, or embraced, next time around. That's no accident -- it's how he designs it. Just take a look at the one-sentence footnote 4, which apparently purports to resolveseveral inscrutable constitutional questions -- concerning unconstitutional conditions, and the "segregation" requirements of, e.g., Rustand LWV -- that many very bright folks (e.g., Seth Kreimer, Kathleen Sullivan, Mitch Berman, Doug in his Harvard piece) have spent hundreds upon hundreds of pages trying to unravel (and that we struggled with for weeks on this list prior to the Court's decision). The judgment in Locke can be defended. But in order to do so, one needs a much richer account than Rehnquist would ever dream of providing with respect to at least two things: (i) an explanation of exactly why Washington might wish not to fund divinity studies (or why the state in your hypo, Eugene, would single out religion for restriction) -- by which I mean something much more than the simple and unhelpful "because there's atradition of not using government fundsto subsidize the church"; and (ii) a more fullsome understanding of which sorts of government reasons for singling out religion are, and are not, constitutionally problematic. I'm working on it -- and I'll get back to you in a few years . . . . - Original Message - From: "Volokh, Eugene" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Tuesday, May 03, 2005 2:09 PM Subject: RE: Locke v. Davey follow-up I don't quite understand this. Steve himself says "A state maynot want to use public funds to support religion and religious training.And it can constitutionally do so." In my hypothetical, that is*precisely* what the state is trying to do.Now perhaps Steve's "unreality" point is simply that theprovision is unlikely to be enacted. That's hard to tell; the U.S. is abig country, and lots of things that are unlikely generally may getenacted in one or another location under one or another circumstance. Irealize that some hypos are so outlandish that they shed little light onthe question. But is this really *that* outlandish? Is it reallypointless to consider what would happen when a state is genuinelycommitted to the *very sentiments expressed in Steve's own quote*, andjust takes them further than Washington did in Locke?Finally, as to looking to the principles actually used by theCourt, I would have thought that we ought to ask them to be logical --perhaps not perfectly crisp and clear in all instances, but stillgenerally logical.Eugene-Original Message-From: [EMAIL PROTECTED][mailto:[EMAIL PROTECTED] On Behalf Of Steven JamarSe
Re: Locke v. Davey follow-up
Eugene: Could you clarify your hypo just a bit to address Doug's question?: Is your "no religion" restriction imposed only on the government funds, or is there (as in Davey, Rust, Sabri, etc.) a broader, "segregation"restriction on the recipient's use of her own funds, on the theory that money is fungible and receipt of government money "frees up" dollars for the "disfavored" expenditure? If the latter, what's the restriction? In Davey, it was that the student had to work toward a theology major in a separate undergrad program; in Rust, that abortion could be counseled only by a separate affiliate, in a separate clinic, strictly segregated in personnel, placement and bookkeeping.In the absence of an organizational recipient or a "program," as such, wouldn't your hypo have to concede that the recipient can use her non-government-provided funds for religious purposes? Which wouldn't make the problem disappear -- especially not for someone dependent on the welfare benefits. But it would change the hypo somewhat -- e.g., to make it more akin to Maher and Harris v. McRae. - Original Message - From: "Volokh, Eugene" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Tuesday, May 03, 2005 3:51 PM Subject: RE: Locke v. Davey follow-up But this isn't just a standard failure to accommodate, as inSmith, Bob Jones, U.S. v. Lee, and the like -- this *is* discriminationagainst religion (both the hypo and the program in Locke). One mightargue that it's justifiable discrimination, but it's discrimination.As to the government's reasons for the condition, both in Lockeand in my hypo, the government is indeed saying "because this isreligious and we wish to respect what we see as taxpayers' right not tofund the sacred." Is that good enough?Toni Massaro writes: I think that every failure to accommodate does not constitute "discrimination against" -- not that there is no such thing as a failure to accommodate that rises to the level of persecution, hostility or selective burdening of religion that crosses constitutional lines. I think the Court's emerging account of "neutrality" does not capture this nuance. As for the hypo --a very tough one, as are all of the "unconstitutional conditions" hypos -- I would first ask for the government's reasons for the condition along with other factors that weigh in this balance. It may well be that there is no good reason for drawing this line other than hostility. "Romer-like" My point about "neutrality" being an insufficient tool is that I think the government should have more room to say "because this is religious and I wish to respect a line between the sacred and the secular by avoiding the former's support categorically" than "because this is indecent or has sexual content orand I do not like it" Also, "neutrality" has a liberal equality ring to it, and I think our religious selves are more resistant to liberal methodologies than other aspects. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
Title: Message I think you had it right the first time, Eugene:At least as a general proposition, weindeed ought to ask the justices to be logical and principled in the sense you have in mind, and they should be subject to criticism when they are not. (I say "at least as a general proposition" to leave room for the possibility of prudentially justified exceptions.) Dan Conkle -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, EugeneSent: Tuesday, May 03, 2005 2:54 PMTo: Law Religion issues for Law AcademicsSubject: RE: Locke v. Davey follow-up Touche; I should have said that there ought to be logic at least to our theories of what the right rule here should be, and to the frameworks that we propose as tools for organizing the caselaw and for deciding future cases.. -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Tuesday, May 03, 2005 11:41 AMTo: Law Religion issues for Law AcademicsSubject: Re: Locke v. Davey follow-up "Finally, as to looking to the principles actually used by the Court, I would have thought that we ought to ask them to be logical -- perhaps not perfectly crisp and clear in all instances, but still generally logical." Eugene, Eugene: Surely you jest. Don't forget to take a look at the very first line of the opinion: "CHIEF JUSTICE REHNQUIST delivered the opinion of the Court." As with most CJ opinions, especially those involving difficult constitutional questions, the whole objectiveis to ensure that there is no internal "logic" at all, so that the Court is free to decidethe next cases any way it wishes. (Another classic in this vein: the indefensible Boy Scouts v. Dale, which makes no doctrinal sense and that can be read either to make mincemeat of a long line of previous cases, or as a one-time ticket good for this day and this train only --probably best viewed as the latter, as the Solomon Amendment case will demonstrate.) Indeed, much to what I imagine is Eugene's chagrin, it turns out that the entire Court is becoming much less doctrinal in recent Terms when it comes to constitutional decisions, and much more, shall we say, discursive, in a Rehnquist/O'Connor/Kennedy sort of way. Scalia and (sometimes) Souter and Thomas might be exceptions. But surely, the Chief's opinions are, quite intentionally, the most inscrutable of all. Locke v. Davey is a Chief Special.It goes out of its way to throw together, willy-nilly,a bunch of different variables and factors, any one (or two, or three) of which could be ignored, or embraced, next time around. That's no accident -- it's how he designs it. Just take a look at the one-sentence footnote 4, which apparently purports to resolveseveral inscrutable constitutional questions -- concerning unconstitutional conditions, and the "segregation" requirements of, e.g., Rustand LWV -- that many very bright folks (e.g., Seth Kreimer, Kathleen Sullivan, Mitch Berman, Doug in his Harvard piece) have spent hundreds upon hundreds of pages trying to unravel (and that we struggled with for weeks on this list prior to the Court's decision). The judgment in Locke can be defended. But in order to do so, one needs a much richer account than Rehnquist would ever dream of providing with respect to at least two things: (i) an explanation of exactly why Washington might wish not to fund divinity studies (or why the state in your hypo, Eugene, would single out religion for restriction) -- by which I mean something much more than the simple and unhelpful "because there's atradition of not using government fundsto subsidize the church"; and (ii) a more fullsome understanding of which sorts of government reasons for singling out religion are, and are not, constitutionally problematic. I'm working on it -- and I'll get back to you in a few years . . . . - Original Message - From: "Volokh, Eugene" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Tuesday, May 03, 2005 2:09 PM Subject: RE: Locke v. Davey follow-up I don't quite understand this. Steve himself says "A state maynot want to use public funds to support religion and religious training.And it can constitutionally do so." In my hypothetical, that is*precisely* what the state is trying to do.Now perhaps Steve's "unreality" point is simply that theprovision is unlikely to be enacted. That's hard to tell; the U.S. is abig country, and lots of th
Re: Locke v. Davey follow-up
Title: Message Just curious: If the opinion is intentionally "underreasoned" in order to (i) keep the Court's docket running smoothly; and (ii) readily bring on board seven votes; and (ii) leave open for further cases those difficult questions -- not presented in the case itself -- that might divide the seven-Justice majority . . . is that a prudentially justified exception? - Original Message - From: Conkle, Daniel O. To: Law Religion issues for Law Academics Sent: Tuesday, May 03, 2005 4:09 PM Subject: RE: Locke v. Davey follow-up I think you had it right the first time, Eugene:At least as a general proposition, weindeed ought to ask the justices to be logical and principled in the sense you have in mind, and they should be subject to criticism when they are not. (I say "at least as a general proposition" to leave room for the possibility of prudentially justified exceptions.) Dan Conkle -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, EugeneSent: Tuesday, May 03, 2005 2:54 PMTo: Law Religion issues for Law AcademicsSubject: RE: Locke v. Davey follow-up Touche; I should have said that there ought to be logic at least to our theories of what the right rule here should be, and to the frameworks that we propose as tools for organizing the caselaw and for deciding future cases.. -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Tuesday, May 03, 2005 11:41 AMTo: Law Religion issues for Law AcademicsSubject: Re: Locke v. Davey follow-up "Finally, as to looking to the principles actually used by the Court, I would have thought that we ought to ask them to be logical -- perhaps not perfectly crisp and clear in all instances, but still generally logical." Eugene, Eugene: Surely you jest. Don't forget to take a look at the very first line of the opinion: "CHIEF JUSTICE REHNQUIST delivered the opinion of the Court." As with most CJ opinions, especially those involving difficult constitutional questions, the whole objectiveis to ensure that there is no internal "logic" at all, so that the Court is free to decidethe next cases any way it wishes. (Another classic in this vein: the indefensible Boy Scouts v. Dale, which makes no doctrinal sense and that can be read either to make mincemeat of a long line of previous cases, or as a one-time ticket good for this day and this train only --probably best viewed as the latter, as the Solomon Amendment case will demonstrate.) Indeed, much to what I imagine is Eugene's chagrin, it turns out that the entire Court is becoming much less doctrinal in recent Terms when it comes to constitutional decisions, and much more, shall we say, discursive, in a Rehnquist/O'Connor/Kennedy sort of way. Scalia and (sometimes) Souter and Thomas might be exceptions. But surely, the Chief's opinions are, quite intentionally, the most inscrutable of all. Locke v. Davey is a Chief Special.It goes out of its way to throw together, willy-nilly,a bunch of different variables and factors, any one (or two, or three) of which could be ignored, or embraced, next time around. That's no accident -- it's how he designs it. Just take a look at the one-sentence footnote 4, which apparently purports to resolveseveral inscrutable constitutional questions -- concerning unconstitutional conditions, and the "segregation" requirements of, e.g., Rustand LWV -- that many very bright folks (e.g., Seth Kreimer, Kathleen Sullivan, Mitch Berman, Doug in his Harvard piece) have spent hundreds upon hundreds of pages trying to unravel (and that we struggled with for weeks on this list prior to the Court's decision). The judgment in Locke can be defended. But in order to do so, one needs a much richer account than Rehnquist would ever dream of providing with respect to at least two things: (i) an explanation of exactly why Washington might wish not to fund divinity studies (or why the state in your hypo, Eugene, would single out religion for restriction) -- by which I mean something much more than the simple and unhelpful "because there's atradition of not using government fundsto subsidize the church"; and (ii) a more fullsome understanding of which sorts of government reasons for singling out religion are, and are not, constitutionally problematic. I'm working on it -- and I'll get back to you in a
RE: Locke v. Davey follow-up
It used to be good enough, but we know that is not the case anymore. What you call standard failure to accommodate is on shakier ground too, if one cobbles together Rosenberger, Dale, and state/fed RFRAs. But as I said, I think under the logic of current case law, Locke is particularly hard to defend -- and thus your hypos are even harder to defend. That does not mean I think that Locke is a bad result --I don't. As for the Chief's opinions, I disagree with some of what has been said here. Imagine the ornate version of Locke --the one some of us yearned to read -- in which every one of the doctrinal balls thrown to the Court is shagged. The assumption that spinning every theory that this complex little case implicated would have yielded a better outcome, or even a more analytically sound opinion, may not be incorrect. Sometimes (maybe this is the deadening effect of deaningugh) short and sweet is better when one has to juggle incommensurables, as I think the Court does in nearly all of the unconstitutional conditions cases. I also think the Chief may be heeding the sage advice of my high school driver's education instructor: Never back up more than you have to --you increase the chances of hitting something. Speaking of short and sweet --that's more than enough from me on this thread. -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, May 03, 2005 12:51 PM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up But this isn't just a standard failure to accommodate, as in Smith, Bob Jones, U.S. v. Lee, and the like -- this *is* discrimination against religion (both the hypo and the program in Locke). One might argue that it's justifiable discrimination, but it's discrimination. As to the government's reasons for the condition, both in Locke and in my hypo, the government is indeed saying because this is religious and we wish to respect what we see as taxpayers' right not to fund the sacred. Is that good enough? Toni Massaro writes: I think that every failure to accommodate does not constitute discrimination against -- not that there is no such thing as a failure to accommodate that rises to the level of persecution, hostility or selective burdening of religion that crosses constitutional lines. I think the Court's emerging account of neutrality does not capture this nuance. As for the hypo --a very tough one, as are all of the unconstitutional conditions hypos -- I would first ask for the government's reasons for the condition along with other factors that weigh in this balance. It may well be that there is no good reason for drawing this line other than hostility. Romer-like My point about neutrality being an insufficient tool is that I think the government should have more room to say because this is religious and I wish to respect a line between the sacred and the secular by avoiding the former's support categorically than because this is indecent or has sexual content orand I do not like it Also, neutrality has a liberal equality ring to it, and I think our religious selves are more resistant to liberal methodologies than other aspects. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
Title: Message Only as to government funds. The requirement is simply: "We're giving you $X per month because you're poor /disabled /aged / a citizen of a welfare state. We aren't imposing any restrictions on your spending the money, except that you may not use it for religious education [or, in Alan's friendly modification, to donate to a church." The recipient is free to spend or donate his own money, but of course he might not have the money to donate. Whether this is akin to Maher and Harris, I take it, depends on whether there's a principle that the government may not discriminate against religious practice in this context. Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Tuesday, May 03, 2005 1:05 PMTo: Law Religion issues for Law AcademicsSubject: Re: Locke v. Davey follow-up Eugene: Could you clarify your hypo just a bit to address Doug's question?: Is your "no religion" restriction imposed only on the government funds, or is there (as in Davey, Rust, Sabri, etc.) a broader, "segregation"restriction on the recipient's use of her own funds, on the theory that money is fungible and receipt of government money "frees up" dollars for the "disfavored" expenditure? If the latter, what's the restriction? In Davey, it was that the student had to work toward a theology major in a separate undergrad program; in Rust, that abortion could be counseled only by a separate affiliate, in a separate clinic, strictly segregated in personnel, placement and bookkeeping.In the absence of an organizational recipient or a "program," as such, wouldn't your hypo have to concede that the recipient can use her non-government-provided funds for religious purposes? Which wouldn't make the problem disappear -- especially not for someone dependent on the welfare benefits. But it would change the hypo somewhat -- e.g., to make it more akin to Maher and Harris v. McRae. - Original Message - From: "Volokh, Eugene" [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" religionlaw@lists.ucla.edu Sent: Tuesday, May 03, 2005 3:51 PM Subject: RE: Locke v. Davey follow-up But this isn't just a standard failure to accommodate, as inSmith, Bob Jones, U.S. v. Lee, and the like -- this *is* discriminationagainst religion (both the hypo and the program in Locke). One mightargue that it's justifiable discrimination, but it's discrimination.As to the government's reasons for the condition, both in Lockeand in my hypo, the government is indeed saying "because this isreligious and we wish to respect what we see as taxpayers' right not tofund the sacred." Is that good enough?Toni Massaro writes: I think that every failure to accommodate does not constitute "discrimination against" -- not that there is no such thing as a failure to accommodate that rises to the level of persecution, hostility or selective burdening of religion that crosses constitutional lines. I think the Court's emerging account of "neutrality" does not capture this nuance. As for the hypo --a very tough one, as are all of the "unconstitutional conditions" hypos -- I would first ask for the government's reasons for the condition along with other factors that weigh in this balance. It may well be that there is no good reason for drawing this line other than hostility. "Romer-like" My point about "neutrality" being an insufficient tool is that I think the government should have more room to say "because this is religious and I wish to respect a line between the sacred and the secular by avoiding the former's support categorically" than "because this is indecent or has sexual content orand I do not like it" Also, "neutrality" has a liberal equality ring to it, and I think our religious selves are more resistant to liberal methodologies than other aspects. ___To post, send message to Religionlaw@lists.ucla.eduTo subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be vie
RE: Locke v. Davey follow-up
Title: Message
Good
question, Marty. I'd be interested to hear what others might have to say,
both concerning the Rehnquist opinion in Locke v. Davey, his opinions more
generally, and also the more general trend of opinion-writing that you describe
in your previous post.
I think
there's probably a law review article in my parenthetical comment. As you
said in your previous post, I'll get back to you in a few
years!
Dan
Conkle
-Original Message-From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
On Behalf Of Marty LedermanSent: Tuesday, May 03, 2005 3:15
PMTo: Law Religion issues for Law AcademicsSubject:
Re: Locke v. Davey follow-up
Just curious: If the opinion is
intentionally "underreasoned" in order to (i) keep the Court's docket running
smoothly; and (ii) readily bring on board seven votes; and (ii) leave open for
further cases those difficult questions -- not presented in the case itself --
that might divide the seven-Justice majority . . . is that a prudentially
justified exception?
- Original Message -
From:
Conkle, Daniel
O.
To: Law Religion issues for Law
Academics
Sent: Tuesday, May 03, 2005 4:09
PM
Subject: RE: Locke v. Davey
follow-up
I think
you had it right the first time, Eugene:At least as a general
proposition, weindeed ought to ask the justices to be logical and
principled in the sense you have in mind, and they should be subject to
criticism when they are not. (I say "at least as a general
proposition" to leave room for the possibility of prudentially justified
exceptions.)
Dan
Conkle
-Original Message-From:
[EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Volokh,
EugeneSent: Tuesday, May 03, 2005 2:54 PMTo: Law
Religion issues for Law AcademicsSubject: RE: Locke v.
Davey follow-up
Touche; I should have said that there
ought to be logic at least to our theories of what the right rule here
should be, and to the frameworks that we propose as tools for organizing
the caselaw and for deciding future cases..
-Original Message-From:
[EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Marty
LedermanSent: Tuesday, May 03, 2005 11:41 AMTo:
Law Religion issues for Law AcademicsSubject: Re: Locke
v. Davey follow-up
"Finally, as to looking to the principles
actually used by the Court, I would have thought that we ought to ask
them to be logical -- perhaps not perfectly crisp and clear in all
instances, but still generally logical."
Eugene, Eugene: Surely you
jest. Don't forget to take a look at the very first line of the
opinion: "CHIEF JUSTICE REHNQUIST delivered the opinion of the Court." As with most CJ
opinions, especially those involving difficult constitutional questions,
the whole objectiveis to ensure that there is no internal
"logic" at all, so that the Court is free to decidethe next cases
any way it wishes. (Another classic in this vein: the
indefensible Boy Scouts v. Dale, which makes no
doctrinal sense and that can be read either to make mincemeat of a long
line of previous cases, or as a one-time ticket good for this day and
this train only --probably best viewed as the latter, as the
Solomon Amendment case will demonstrate.) Indeed, much to what I
imagine is Eugene's chagrin, it turns out that the entire Court is
becoming much less doctrinal in recent Terms when it comes to
constitutional decisions, and much more, shall we say,
discursive, in a Rehnquist/O'Connor/Kennedy sort of way.
Scalia and (sometimes) Souter and Thomas might be exceptions. But
surely, the Chief's opinions are, quite intentionally, the most
inscrutable of all.
Locke v.
Davey is a Chief Special.It goes out of its way to
throw together, willy-nilly,a bunch of different variables and
factors, any one (or two, or three) of which could be ignored, or
embraced, next time around. That's no accident -- it's how
he designs it. Just take a look at the one-sentence
footnote 4, which apparently purports to resolveseveral
inscrutable constitutional questions -- concerning unconstitutional
conditions, and the "segregation" requirements of, e.g.,
Rustand LWV -- that many very bright folks
(e.g., Seth Kreimer, Kathleen Sullivan, Mitch Berman, Doug in his
Harvard piece) have spent hundreds upon hundreds of pages trying to
unravel (and that we struggled with for weeks on this list prior to the
RE: Locke v. Davey follow-up
Title: Message I assume the limitation would also prohibit donation of the money to an anti-religious organization, or the use of it to study atheism? Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, May 03, 2005 1:32 PM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up Only as to government funds. The requirement is simply: We're giving you $X per month because you're poor /disabled /aged / a citizen of a welfare state. We aren't imposing any restrictions on your spending the money, except that you may not use it for religious education [or, in Alan's friendly modification, to donate to a church. The recipient is free to spend or donate his own money, but of course he might not have the money to donate. Whether this is akin to Maher and Harris, I take it, depends on whether there's a principle that the government may not discriminate against religious practice in this context. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman Sent: Tuesday, May 03, 2005 1:05 PM To: Law Religion issues for Law Academics Subject: Re: Locke v. Davey follow-up Eugene: Could you clarify your hypo just a bit to address Doug's question?: Is your no religion restriction imposed only on the government funds, or is there (as in Davey, Rust, Sabri, etc.) a broader, segregationrestriction on the recipient's use of her own funds, on the theory that money is fungible and receipt of government money frees up dollars for the disfavored expenditure? If the latter, what's the restriction? In Davey, it was that the student had to work toward a theology major in a separate undergrad program; in Rust, that abortion could be counseled only by a separate affiliate, in a separate clinic, strictly segregated in personnel, placement and bookkeeping.In the absence of an organizational recipient or a program, as such, wouldn't your hypo have to concede that the recipient can use her non-government-provided funds for religious purposes? Which wouldn't make the problem disappear -- especially not for someone dependent on the welfare benefits. But it would change the hypo somewhat -- e.g., to make it more akin to Maher and Harris v. McRae. - Original Message - From: Volokh, Eugene [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tuesday, May 03, 2005 3:51 PM Subject: RE: Locke v. Davey follow-up But this isn't just a standard failure to accommodate, as in Smith, Bob Jones, U.S. v. Lee, and the like -- this *is* discrimination against religion (both the hypo and the program in Locke). One might argue that it's justifiable discrimination, but it's discrimination. As to the government's reasons for the condition, both in Locke and in my hypo, the government is indeed saying because this is religious and we wish to respect what we see as taxpayers' right not to fund the sacred. Is that good enough? Toni Massaro writes: I think that every failure to accommodate does not constitute discrimination against -- not that there is no such thing as a failure to accommodate that rises to the level of persecution, hostility or selective burdening of religion that crosses constitutional lines. I think the Court's emerging account of neutrality does not capture this nuance. As for the hypo --a very tough one, as are all of the unconstitutional conditions hypos -- I would first ask for the government's reasons for the condition along with other factors that weigh in this balance. It may well be that there is no good reason for drawing this line other than hostility. Romer-like My point about neutrality being an insufficient tool is that I think the government should have more room to say because this is religious and I wish to respect a line between the sacred and the secular by avoiding the former's support categorically than because this is indecent or has sexual content orand I do not like it Also, neutrality has a liberal equality ring to it, and I think our religious selves are more resistant to liberal methodologies than other aspects. ___ 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
RE: Locke v. Davey follow-up
I don't think the problem is lack of logic. It is lack of information. We don't know enough from Locke to determine the class of situations in which states will be permitted to decline to provide indirect subsidies to recipients who want to use those funds for religious activities. And we don't know what kinds of arguments supporting such a decision would be persuasive to the Court. Having said that, I can think of ways to distinguish Eugene's hypo from Locke. But I have no way of knowing whether these distinctions would be acceptable or persuasive. For example, assuming there are some good reasons for allowing states to limit even indirect state support for religious activities, the Court might still elect not to allow states to limit such spending in Eugene's hypo. 1.Given the extremely limited funds provided to welfare recipients (and the high cost of food, shelter, and medical care) and the lack of alternative sources of income available to welfare recipients, the Court might reasonably conclude that allowing welfare payments to be used for Bible studies or church dues creates a de minimis problem. Religious institutions will not ask for the payments (see my prior post) and welfare recipients are too much in need to offer payments gratuitously. The same analysis may not apply to the use of scholarships by theology majors studying for the Ministry. The cost to the college of allowing students to matriculate may be too high to allow all needy, qualified students to enroll. Thus, the schools will ask for tuition payments. And scholarship recipients planning on studying theology will use the scholarship to pursue their studies. Thus, the state's restriction on the religious use of welfare payments, unlike the restriction on the use of Promise scholarships, appears to involve a gratuitous chilling of occasional minor donations to religious institutions by the poor. 2. Scholarships for higher education may create greater risks of the state imposing eligibility conditions on the college a scholarship student attends. It is harder to imagine the state imposing conditions on church or synagogue membership or Bible studies classes at a local house of worship -- and the Court would probably not allow them anyway. 3. Although only a few Promise Scholarship recipients were using the scholarships for theological purposes, the Court might conclude that it would be difficult to allow this religious use of limited scholarships while insisting that more broadly available state scholarships could not be used for theological purposes. Thus, Promise Scholarship recipients may have their use of state funds limited because of the difficulty the Court would experience in distinguishing among funding arrangements that might subsidize a significant percentage of theology majors studying for the ministry and those that would apply to only a very few students. Allowing general welfare benefits to the truly indigent to be used for religious purposes may be more easily distinguished from other benefit arrangements -- because states do not commonly give money to people to use as they please -- and the situation in which they do (generic welfare benefits) creates a de minimis risk of state subsidies for religious activities. these arguments may not be all that persuasive. But I don't think they are illogical. Alan Brownstein UC Davis At 11:09 AM 5/3/2005 -0700, you wrote: I don't quite understand this. Steve himself says A state may not want to use public funds to support religion and religious training. And it can constitutionally do so. In my hypothetical, that is *precisely* what the state is trying to do. Now perhaps Steve's unreality point is simply that the provision is unlikely to be enacted. That's hard to tell; the U.S. is a big country, and lots of things that are unlikely generally may get enacted in one or another location under one or another circumstance. I realize that some hypos are so outlandish that they shed little light on the question. But is this really *that* outlandish? Is it really pointless to consider what would happen when a state is genuinely committed to the *very sentiments expressed in Steve's own quote*, and just takes them further than Washington did in Locke? Finally, as to looking to the principles actually used by the Court, I would have thought that we ought to ask them to be logical -- perhaps not perfectly crisp and clear in all instances, but still generally logical. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar Sent: Tuesday, May 03, 2005 10:31 AM To: Law Religion issues for Law Academics Subject: Re: Locke v. Davey follow-up The reason I find Eugene's hypo uninteresting is the unreality of it. Of course, I say this despite having seen many things I once thought from the realm of fantasy come to pass. There is a difference between a tax
RE: Locke v. Davey follow-up
Title: Message
Sure.
-Original Message-From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
On Behalf Of Scarberry, MarkSent: Tuesday, May 03, 2005 1:43
PMTo: 'Law Religion issues for Law
Academics'Subject: RE: Locke v. Davey
follow-up
I assume the
limitation would also prohibit donation of the money to an anti-religious
organization, or the use of it to study atheism?
Mark S.
Scarberry
Pepperdine University
School of Law
-Original
Message-From:
Volokh, Eugene
[mailto:[EMAIL PROTECTED] Sent: Tuesday, May 03, 2005 1:32
PMTo: Law
Religion issues for Law AcademicsSubject: RE: Locke v. Davey
follow-up
Only as to government funds. The requirement is simply: "We're
giving you $X per month because you're poor /disabled /aged / a
citizen of a welfare state. We aren't imposing any restrictions on your
spending the money, except that you may not use it for religious education
[or, in Alan's friendly modification, to donate to a church." The
recipient is free to spend or donate his own money, but of course he might not
have the money to donate.
Whether
this is akin to Maher and Harris, I take it, depends on whether there's a
principle that the government may not discriminate against religious practice
in this context.
Eugene
-Original
Message-From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
On Behalf Of Marty
LedermanSent: Tuesday, May
03, 2005 1:05 PMTo: Law
Religion issues for Law AcademicsSubject: Re: Locke v. Davey
follow-up
Eugene: Could you clarify
your hypo just a bit to address Doug's question?: Is your "no
religion" restriction imposed only on the government
funds, or is there (as in Davey, Rust,
Sabri, etc.) a broader,
"segregation"restriction on the recipient's use of her own funds, on
the theory that money is fungible and receipt of government money "frees up"
dollars for the "disfavored" expenditure? If the latter, what's the
restriction? In Davey, it was that the
student had to work toward a theology major in a separate undergrad program;
in Rust, that abortion could
be counseled only by a separate affiliate, in a separate clinic, strictly
segregated in personnel, placement and bookkeeping.In the
absence of an organizational recipient or a "program," as such, wouldn't
your hypo have to concede that the
recipient can use her non-government-provided funds for religious
purposes? Which wouldn't make the problem disappear -- especially not
for someone dependent on the welfare benefits. But it would change the
hypo somewhat -- e.g., to make it more akin to Maher and Harris v.
McRae.
- Original Message -
From: "Volokh, Eugene"
[EMAIL PROTECTED]
To: "Law Religion issues
for Law Academics" religionlaw@lists.ucla.edu
Sent: Tuesday, May 03, 2005 3:51
PM
Subject: RE: Locke v. Davey
follow-up
But this isn't just a standard
failure to accommodate, as inSmith, Bob Jones, U.S. v. Lee, and the like
-- this *is* discriminationagainst religion (both the hypo and the
program in Locke). One mightargue that it's justifiable
discrimination, but it's discrimination.As to the government's
reasons for the condition, both in Lockeand in my hypo, the government
is indeed saying "because this isreligious and we wish to respect what
we see as taxpayers' right not tofund the sacred." Is that good
enough?Toni Massaro writes: I think that every failure
to accommodate does not constitute "discrimination against" -- not
that there is no such thing as a failure to accommodate that rises
to the level of persecution, hostility or selective burdening of
religion that crosses constitutional lines. I
think the Court's emerging account of "neutrality" does not capture
this nuance. As for the hypo --a very tough one, as are all
of the "unconstitutional conditions" hypos -- I would first ask for
the government's reasons for the condition along with other
factors that weigh in this balance. It may well be that there
is no good reason for drawing this line other than hostility.
"Romer-like" My point about "neutrality"
being an insufficient tool is that I think the government should
have more room to say "because this is religious and I wish to
respect a line between the sacred and the secular by avoiding the
former's support categorically" than "because this is indecent or
has sexual content orand I do not like it"
A
RE: Locke v. Davey follow-up
But suppose that the State of Washington had the authority under the TANF to make the welfare payments something less than or other than wages. Why would the limitation or condition be unconstitutional? The distinction between higher education and other forms of education has no warrant in the case law, does it? (The cases involving religion in schools are clearly distinguishable.) -Original Message- From: Lupu [mailto:[EMAIL PROTECTED] Sent: Tuesday, May 03, 2005 9:36 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up First of all, Congress repealed the AFDC program 9 years ago, and substituted the non-entitlement program called Temporary Assistance to Needy Families. Secnd, cash welfare payments have always been treated like wages once they are in the hands of recipients -- spend as you like, but you are subject to the state's laws re: child neglect. And welfare recipients tend to be scrutinzed more for such neglect than non-recipients. So if a welfare parent is spending too much for classes and not enough to feed his children, it may lead him into some trouble. All that said, Mark Scarberry and Doug Laycock are exactly right that the state has no legitimate purpose in singling out Bible classes as distinguished from other classes once it makes this kind of cash transfer. Such singling out would violate the constitution in a number of ways, including infringement of right to acquire information as well as free exercise of religion (and perhaps right to direct education of children, if the ban included children as well). By contrast, Locke involves expenditures targeted at higher education. The state may exclude those studies that it deems unproductive (astrology), or those that it does not want to subsidize for reasons of respect for autonomy of clergy preparation (the state may not regulate such preparation, so it may choose not to pay for it). But that sort of policy is a far cry from a discriminatory restriction on what is otherwise an unrestricted cash transfer, either in wages to a state employee or in payment of Temporary Assistance to Needy Families. Chip Lupu On 2 May 2005 at 22:08, Scarberry, Mark wrote: Here are some preliminary thoughts on Eugene's question. Though I think Locke v. Davey was incorrectly decided, it is at least plausible to say that a government education grant that can be used for clergy training involves government in supporting the training of clergy. Because direct government support for religious training -- and especially for the training of clergy -- is a high voltage historical issue that has been controversial since the Founding, the Court allowed Washington to steer clear of it in a way that discriminates against religion. But the notion that a government grant program that is not specifically for education implicates Establishment concerns when the recipient chooses to use the money for some religious purpose does not have historical resonance. Indeed, since it is likely that many people at the time of the Founding tithed (perhaps the historians can tell us whether that is true), the idea would have been outrageous that a recipient of government money (such as the salary of a federal employee or a payment to a federal contractor) could not use some of that money for religious purposes. It would have meant that many religious persons could not have been government employees or contractors. Cf. the prohibition on religious tests for federal office. Since we don't have a high voltage historical Establishment controversy, the usual rule should apply, that discrimination against religious uses of such grants violates the Free Exercise Clause. That is not to say that a grant of money for purchase specifically of food could not contain a condition requiring that it be used only for food; consider the food stamp program. But if the recipient is entitled to use the money for purposes chosen by the recipient, there should be no discrimination against religious purposes. And a fungibility approach -- saying, for example, that no one who gets food stamps can give any money to a church, because money is fungible and it might as well be the government money that is being used -- would similarly discriminate against religion. Can you imagine such a program comprehensively governing the spending of a recipient? No Playboy magazines to be purchased with other money? No concerts? No newspapers? Such regulation would violate other parts of the First Amendment, wouldn't it? Mark Scarberry Pepperdine -Original Message- From: Volokh, Eugene To: Law Religion issues for Law Academics Sent: 5/2/2005 9:33 PM Subject: RE: Locke v. Davey follow-up I may be mistaken, but I've never heard of AFDC statutes limiting the use of the money to food, shelter, and the like; as best I can tell, recipients are free to spend the money on anything, including
RE: Locke v. Davey follow-up
Why is the state's antiestablishment interest weaker and why is the burden on free exercise greater? -Original Message- From: Conkle, Daniel O. [mailto:[EMAIL PROTECTED] Sent: Tuesday, May 03, 2005 9:45 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up As I read the opinion, Locke v. Davey applied a sort of balancing test. As Mark notes, the Court found a strong and historically recognized antiestablishment interest on the part of the state. At the same time, the Court also found the free exercise burden, if any, to be slight. The Court concluded that the state's disfavor of religion was minimal and did not suggest hostility. The Court might well find a greater burden--and perhaps increased evidence of hostility--if a state were to bar welfare recipients from using their benefits for religious instruction. Note that Davey could have kept his scholarship and used it to study devotional theology, as long as he did not declare that field as his major. If I'm right, the balance tips differently in Eugene's hypothetical for each of two reasons: the state's antiestablishment interest is weaker and the burden on free exercise is greater. Dan Conkle ** Daniel O. Conkle Professor of Law Indiana University School of Law Bloomington, Indiana 47405 (812) 855-4331 fax (812) 855-0555 e-mail [EMAIL PROTECTED] ** -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Scarberry, Mark Sent: Tuesday, May 03, 2005 12:09 AM To: 'Law Religion issues for Law Academics ' Subject: RE: Locke v. Davey follow-up Here are some preliminary thoughts on Eugene's question. Though I think Locke v. Davey was incorrectly decided, it is at least plausible to say that a government education grant that can be used for clergy training involves government in supporting the training of clergy. Because direct government support for religious training -- and especially for the training of clergy -- is a high voltage historical issue that has been controversial since the Founding, the Court allowed Washington to steer clear of it in a way that discriminates against religion. But the notion that a government grant program that is not specifically for education implicates Establishment concerns when the recipient chooses to use the money for some religious purpose does not have historical resonance. Indeed, since it is likely that many people at the time of the Founding tithed (perhaps the historians can tell us whether that is true), the idea would have been outrageous that a recipient of government money (such as the salary of a federal employee or a payment to a federal contractor) could not use some of that money for religious purposes. It would have meant that many religious persons could not have been government employees or contractors. Cf. the prohibition on religious tests for federal office. Since we don't have a high voltage historical Establishment controversy, the usual rule should apply, that discrimination against religious uses of such grants violates the Free Exercise Clause. That is not to say that a grant of money for purchase specifically of food could not contain a condition requiring that it be used only for food; consider the food stamp program. But if the recipient is entitled to use the money for purposes chosen by the recipient, there should be no discrimination against religious purposes. And a fungibility approach -- saying, for example, that no one who gets food stamps can give any money to a church, because money is fungible and it might as well be the government money that is being used -- would similarly discriminate against religion. Can you imagine such a program comprehensively governing the spending of a recipient? No Playboy magazines to be purchased with other money? No concerts? No newspapers? Such regulation would violate other parts of the First Amendment, wouldn't it? Mark Scarberry Pepperdine -Original Message- From: Volokh, Eugene To: Law Religion issues for Law Academics Sent: 5/2/2005 9:33 PM Subject: RE: Locke v. Davey follow-up I may be mistaken, but I've never heard of AFDC statutes limiting the use of the money to food, shelter, and the like; as best I can tell, recipients are free to spend the money on anything, including education. But since I didn't want to assume anything about the federal AFDC scheme, I asked about a state general relief or disability plan. So let me ask again, though with this point clarified: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits -- which are otherwise usable by the recipient for any other purpose -- may not be used to pay for any theological education, whether
Re: Locke v. Davey follow-up
In a message dated 5/3/2005 11:05:27 AM Pacific Daylight Time, [EMAIL PROTECTED] writes: The reason I find Eugene's hypo uninteresting is the unreality of it. Of course, I say this despite having seen many things I once thought from the realm of fantasy come to pass. I wouldn't be so sure. Because I used to help moderate the ACLU message boards (http://forums.aclu.org), I've seen a lot of strange complaints posted including one very similar to the Volokh hypo and Brownstein corollary. I particularly recall a reverend in Oklahoma posting about a married couple in his church who receive both federal Section 8 housing assistance and a state disability check. The state of Oklahoma apparently prohibits the husband from using his disability check to tithe to the church. The couple's apartment manager also says they can't hold Bible study meetings in Section 8 housing. See the December 11, 2004 post in the thread at this link/address: http://forums6.aclu.org/messageview.cfm?catid=81threadid=7115STARTPAGE=3 While the apartment manager's prohibition of Bible study classes held in section 8 housing seems to me vulnerable to several successful constitutional challenges, the state of Oklahoma's purported prohibition of tithing by someone getting a disability check as their sole source of income seems much more constitutionally tenable (however wrong as a legislative choice). As a point of comparison, as a public defender, I represented welfare recipients subject to similar coercive pressures. I represented welfare recipients charged with failing to disclose income, assets, or even household members (and their income) that could be used to reduce their benefits. If the state can use benefits to coerce a person's right to choose their living arrangements (as protected by Moore v. East Cleveland), I'm not sure why the state could not forbid giving a disability check to charities, religious or otherwise. In any case, to the extent the posting on the ACLU message board is accurate (and it has some ring of truth), the Volokh hypo and Brownstein corollary are not so farfetched. Allen Asch Attorney at Law Sacramento, CA ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
Title: Message I much appreciate Allen Asch's input on this. I should say thata ban on charitable contributions from disability checks would probably be constitutional. But the question on this thread, I think, is whether it's constitutional to ban *only religious contributions* (or only payments for informal religious education), while still allowing nonreligious contributions. Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED]Sent: Tuesday, May 03, 2005 3:46 PMTo: religionlaw@lists.ucla.eduSubject: Re: Locke v. Davey follow-up In a message dated 5/3/2005 11:05:27 AM Pacific Daylight Time, [EMAIL PROTECTED] writes: The reason I find Eugene's hypo uninteresting is the unreality of it. Of course, I say this despite having seen many things I once thought from the realm of fantasy come to pass.I wouldn't be so sure. Because I used to help moderate the ACLU message boards (http://forums.aclu.org), I've seen a lot of strange complaints posted including one very similar to the Volokh hypo and Brownstein corollary. I particularly recall a reverend in Oklahoma posting about a married couple in his church who receive both federal Section 8 housing assistance and a state disability check. The state of Oklahoma apparently prohibits the husband from using his disability check to tithe to the church. The couple's apartment manager also says they can't hold Bible study meetings in Section 8 housing. See the December 11, 2004 post in the thread at this link/address: http://forums6.aclu.org/messageview.cfm?catid=81threadid=7115STARTPAGE=3While the apartment manager's prohibition of Bible study classes held in section 8 housing seems to me vulnerable to several successful constitutional challenges, the state of Oklahoma's purported prohibition of tithing by someone getting a disability check as their sole source of income seems much more constitutionally tenable (however wrong as a legislative choice). As a point of comparison, as a public defender, I represented welfare recipients subject to similar coercive pressures. I represented welfare recipients charged with failing to disclose income, assets, or even household members (and their income) that could be used to reduce their benefits. If the state can use benefits to coerce a person's right to choose their living arrangements (as protected by Moore v. East Cleveland), I'm not sure why the state could not forbid giving a disability check to charities, religious or otherwise.In any case, to the extent the posting on the ACLU message board is accurate (and it has some ring of truth), the Volokh hypo and Brownstein corollary are not so farfetched.Allen AschAttorney at LawSacramento, CA ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
Title: Message And, to add to Eugene's clarification, the issue also is whether it would be constitutional to ban payments for religious studies courses or other religious services if payment for nonreligious courses and services is permitted. Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Volokh, Eugene [mailto:[EMAIL PROTECTED] Sent: Tuesday, May 03, 2005 4:00 PM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up I much appreciate Allen Asch's input on this. I should say thata ban on charitable contributions from disability checks would probably be constitutional. But the question on this thread, I think, is whether it's constitutional to ban *only religious contributions* (or only payments for informal religious education), while still allowing nonreligious contributions. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, May 03, 2005 3:46 PM To: religionlaw@lists.ucla.edu Subject: Re: Locke v. Davey follow-up In a message dated 5/3/2005 11:05:27 AM Pacific Daylight Time, [EMAIL PROTECTED] writes: The reason I find Eugene's hypo uninteresting is the unreality of it. Of course, I say this despite having seen many things I once thought from the realm of fantasy come to pass. I wouldn't be so sure. Because I used to help moderate the ACLU message boards (http://forums.aclu.org), I've seen a lot of strange complaints posted including one very similar to the Volokh hypo and Brownstein corollary. I particularly recall a reverend in Oklahoma posting about a married couple in his church who receive both federal Section 8 housing assistance and a state disability check. The state of Oklahoma apparently prohibits the husband from using his disability check to tithe to the church. The couple's apartment manager also says they can't hold Bible study meetings in Section 8 housing. See the December 11, 2004 post in the thread at this link/address: http://forums6.aclu.org/messageview.cfm?catid=81threadid=7115STARTPAGE=3 While the apartment manager's prohibition of Bible study classes held in section 8 housing seems to me vulnerable to several successful constitutional challenges, the state of Oklahoma's purported prohibition of tithing by someone getting a disability check as their sole source of income seems much more constitutionally tenable (however wrong as a legislative choice). As a point of comparison, as a public defender, I represented welfare recipients subject to similar coercive pressures. I represented welfare recipients charged with failing to disclose income, assets, or even household members (and their income) that could be used to reduce their benefits. If the state can use benefits to coerce a person's right to choose their living arrangements (as protected by Moore v. East Cleveland), I'm not sure why the state could not forbid giving a disability check to charities, religious or otherwise. In any case, to the extent the posting on the ACLU message board is accurate (and it has some ring of truth), the Volokh hypo and Brownstein corollary are not so farfetched. Allen Asch Attorney at Law Sacramento, CA ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Locke v. Davey follow-up
I'm not so sure that I agree with Eugene's analysis. What's the difference between saying you're only eligible for unemployment compensation if you forego certain religious conduct (Sherbert) and you're only entitled to disability benefits if you forego certain religious conduct? But certainly if the law expressly provided a system of individualized exemptions that allowed disability benefits to go to nonreligious charities but prohibited tithing, it would seem to be an easy case. I also have a recollection of a rfra case finding, in the bankruptcy context, that it was a substantial burden to prevent a debtor from tithing. Derek L. Gaubatz Director of Litigation The Becket Fund for Religious Liberty 1350 Connecticut Ave, NW Suite 605 Washington D.C. 20036 (202) 349-7208 (202) 955-0090 (fax) -- Sent from my BlackBerry Wireless Handheld -Original Message- From: [EMAIL PROTECTED] [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Sent: Tue May 03 18:59:35 2005 Subject: RE: Locke v. Davey follow-up I much appreciate Allen Asch's input on this. I should say that a ban on charitable contributions from disability checks would probably be constitutional. But the question on this thread, I think, is whether it's constitutional to ban *only religious contributions* (or only payments for informal religious education), while still allowing nonreligious contributions. Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Tuesday, May 03, 2005 3:46 PM To: religionlaw@lists.ucla.edu Subject: Re: Locke v. Davey follow-up In a message dated 5/3/2005 11:05:27 AM Pacific Daylight Time, [EMAIL PROTECTED] writes: The reason I find Eugene's hypo uninteresting is the unreality of it. Of course, I say this despite having seen many things I once thought from the realm of fantasy come to pass. I wouldn't be so sure. Because I used to help moderate the ACLU message boards (http://forums.aclu.org), I've seen a lot of strange complaints posted including one very similar to the Volokh hypo and Brownstein corollary. I particularly recall a reverend in Oklahoma posting about a married couple in his church who receive both federal Section 8 housing assistance and a state disability check. The state of Oklahoma apparently prohibits the husband from using his disability check to tithe to the church. The couple's apartment manager also says they can't hold Bible study meetings in Section 8 housing. See the December 11, 2004 post in the thread at this link/address: http://forums6.aclu.org/messageview.cfm?catid=81 http://forums6.aclu.org/messageview.cfm?catid=81threadid=7115STARTPAGE=3 threadid=7115STARTPAGE=3 While the apartment manager's prohibition of Bible study classes held in section 8 housing seems to me vulnerable to several successful constitutional challenges, the state of Oklahoma's purported prohibition of tithing by someone getting a disability check as their sole source of income seems much more constitutionally tenable (however wrong as a legislative choice). As a point of comparison, as a public defender, I represented welfare recipients subject to similar coercive pressures. I represented welfare recipients charged with failing to disclose income, assets, or even household members (and their income) that could be used to reduce their benefits. If the state can use benefits to coerce a person's right to choose their living arrangements (as protected by Moore v. East Cleveland), I'm not sure why the state could not forbid giving a disability check to charities, religious or otherwise. In any case, to the extent the posting on the ACLU message board is accurate (and it has some ring of truth), the Volokh hypo and Brownstein corollary are not so farfetched. Allen Asch Attorney at Law Sacramento, CA ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
Derek Gaubatz writes: I'm not so sure that I agree with Eugene's analysis. What's the difference between saying you're only eligible for unemployment compensation if you forego certain religious conduct (Sherbert) and you're only entitled to disability benefits if you forego certain religious conduct? But certainly if the law expressly provided a system of individualized exemptions that allowed disability benefits to go to nonreligious charities but prohibited tithing, it would seem to be an easy case. I also have a recollection of a rfra case finding, in the bankruptcy context, that it was a substantial burden to prevent a debtor from tithing. If there was such an individualized exemption system, then Sherbert might still offer protection, even post-Smith. But I think that post-Smith, it is indeed accurate to say that a ban on charitable contributions from disability checks -- a flat ban, with no individualized judgment about which charities are fine and which aren't would probably be constitutional. Of course I agree that a *discriminatory* rule that allowed disability benefits to go to nonreligious charities but not religious ones is indeed a Free Exercise Clause violation; that was my point. Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
In response to Jean's question, my colleague, Barry McDonald, has written on the topic of the right to acquire information. See Barry P. McDonald, The First Amendment and the Free Flow of Information: Towards a Realistic Right to Gather Information in the Information Age, 65 Ohio St. L. J. 249 (2004). Mark S. Scarberry Pepperdine University School of Law -Original Message- From: Jean Dudley [mailto:[EMAIL PROTECTED] Sent: Tuesday, May 03, 2005 6:45 AM To: Law Religion issues for Law Academics Subject: Re: Locke v. Davey follow-up Lupu wrote: Such singling out would violate the constitution in a number of ways, including infringement of right to acquire information as well as free exercise of religion (and perhaps right to direct education of children, if the ban included children as well). Perhaps I'm putting my ignorance on display, but I wasn't aware that there was a constitutional right to the aquisition of information. Can you give me more info? Jean Dudley ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Locke v. Davey follow-up
A question (based on, but not quite identical to) Justice Scalia's hypothetical in the dissent: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Locke v. Davey follow-up
I think it is a good hypo, Eugene. Perhaps one way to think about an answer is to ask a different question -- Would it be unconstitutional for the state to bar a welfare recipient from using his or her welfare payment to pay church or synagogue membership dues? Alan Brownstein UC Davis At 12:59 PM 5/2/2005 -0700, you wrote: A question (based on, but not quite identical to) Justice Scalia's hypothetical in the dissent: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
Hard to see any logical distinction, but at some point the Court will make one. At some point the possible uses of the money are so general it just seems like the state has given the money to the recipient and then tried to control the recipient's life. And under the sort of prophylactice rule upheld in Davey and Rust v. Sullivan, it would not be enough to say the recipient couldn't use welfare money for Bible classes. She couldn't use any other money either that she used for the same pool of expenses that she used the welfare money for. Because then she would just use her own money for Bible classes, and the welfare money to replace her own money. The logic goes that far, but the Court will not go that far.In the shameless plug department, here is what I said about similar hypos:"The Court has so far given total deference to government's desire to avoid any risk of indirectly subsidizing something it chooses not to subsidize, and it has given no weight to the resulting practical penalty on the exercise of constitutional rights. Plainly, there must be some limit to this approach. In the full logic of fungibility, separate schools or separate facilities are not enough. Davey would be more able to afford his theology degree if the state had paid for his business administration degree elsewhere, or if the government had subsidized his student loan, or if it had paid social security benefits to his mother. Of course the Court will not go to that extreme. But it has gone far already; under Davey and Rust, government's power to withhold funding can be leveraged into substantial power to penalize religious liberty or any other constitutional right. Assuming that money is fungible has enabled the Court to avoid facing the problems of the unconstitutional conditions doctrine, but drawing boundaries to that assumption will eventually add another layer of complexity to those problems."Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty, 118 Harv. L. Rev. 155, 183 (2004).Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax)-Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Volokh, EugeneSent: Monday, May 02, 2005 3:00 PMTo: Law Religion issues for Law AcademicsSubject: Locke v. Davey follow-up A question (based on, but not quite identical to) Justice Scalia's hypothetical in the dissent: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene___To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlawPlease note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
Title: Message I understand the distinction Doug makes, between money given with no strings attached, and money given for education. I just wonder why this distinction should make a First Amendment difference. (1) Both "here's money, but don't use it for Bible Study" and "here's education money, but don't use it to study theology" are facially discriminatory against religion. (2) Neither "here's money, and use it for what you please" nor "here's education money, and use it for what studies you please" -- i.e., the policy that would result if the no-religious-uses conditions were struck down -- is facially discriminatory in favor of religion. (3) Neither of them can be justified on the grounds that otherwise in practice *a huge fraction* of the program money would go to religious uses. Only a very few Promise Scholarship recipients were using the money for theology purposes. (4) Both of them would equally be justifiable on "we want to make sure that not a threepence of taxpayer money goes, even indirectly through private choices, to religious uses." Am I missing something here? I ask particularly those who support Locke v. Davey -- would you also conclude that the condition on welfare recipients is constitutional? Or would you think it's unconstitutional, in which case how would you distinguish Locke? Eugene -Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas LaycockSent: Monday, May 02, 2005 2:39 PMTo: Law Religion issues for Law AcademicsSubject: RE: Locke v. Davey follow-up Hard to see any logical distinction, but at some point the Court will make one. At some point the possible uses of the money are so general it just seems like the state has given the money to the recipient and then tried to control the recipient's life. And under the sort of prophylactice rule upheld in Davey and Rust v. Sullivan, it would not be enough to say the recipient couldn't use welfare money for Bible classes. She couldn't use any other money either that she used for the same pool of expenses that she used the welfare money for. Because then she would just use her own money for Bible classes, and the welfare money to replace her own money. The logic goes that far, but the Court will not go that far.In the shameless plug department, here is what I said about similar hypos:"The Court has so far given total deference to government's desire to avoid any risk of indirectly subsidizing something it chooses not to subsidize, and it has given no weight to the resulting practical penalty on the exercise of constitutional rights. Plainly, there must be some limit to this approach. In the full logic of fungibility, separate schools or separate facilities are not enough. Davey would be more able to afford his theology degree if the state had paid for his business administration degree elsewhere, or if the government had subsidized his student loan, or if it had paid social security benefits to his mother. Of course the Court will not go to that extreme. But it has gone far already; under Davey and Rust, government's power to withhold funding can be leveraged into substantial power to penalize religious liberty or any other constitutional right. Assuming that money is fungible has enabled the Court to avoid facing the problems of the unconstitutional conditions doctrine, but drawing boundaries to that assumption will eventually add another layer of complexity to those problems."Theology Scholarships, the Pledge of Allegiance, and Religious Liberty: Avoiding the Extremes but Missing the Liberty, 118 Harv. L. Rev. 155, 183 (2004).Douglas LaycockUniversity of Texas Law School727 E. Dean Keeton St.Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax)-Original Message-From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]] On Behalf Of Volokh, EugeneSent: Monday, May 02, 2005 3:00 PMTo: Law Religion issues for Law AcademicsSubject: Locke v. Davey follow-up A question (based on, but not quite identical to) Justice Scalia's hypothetical in the dissent: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene___To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, c
Re: Locke v. Davey follow-up
Paul Finkelman wrote: are welfare payments tied to expected budget expenses -- food, housing, clothing, transportatoin, medical care, etc? Most welfare is AFDC, and is earmarked for helping children. If mother uses money for food and housing to pay the church, is that welfare fraud? Paul Finkelman I'd argue that although (some?) welfare funds are ostensibly for the child's welfare, it's up to the legal guardian/parent/s to decide what that welfare entails. If they opt to pay membership dues to a church, temple or coven, that is their decision. If the child is hungry, sick and in worn-out clothes as a result, that's a matter for child welfare services. Jean Dudley ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
I may be mistaken, but I've never heard of AFDC statutes limiting the use of the money to food, shelter, and the like; as best I can tell, recipients are free to spend the money on anything, including education. But since I didn't want to assume anything about the federal AFDC scheme, I asked about a state general relief or disability plan. So let me ask again, though with this point clarified: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits -- which are otherwise usable by the recipient for any other purpose -- may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman Sent: Monday, May 02, 2005 8:34 PM To: Law Religion issues for Law Academics Subject: Re: Locke v. Davey follow-up The question might be how statutes are written. If the statutes limit use of money for certain things, then use of the money might be prohibited for *all* other things, not just religious ecucation; that would then be a law of general applicability. Jean Dudley wrote: Paul Finkelman wrote: are welfare payments tied to expected budget expenses -- food, housing, clothing, transportatoin, medical care, etc? Most welfare is AFDC, and is earmarked for helping children. If mother uses money for food and housing to pay the church, is that welfare fraud? Paul Finkelman I'd argue that although (some?) welfare funds are ostensibly for the child's welfare, it's up to the legal guardian/parent/s to decide what that welfare entails. If they opt to pay membership dues to a church, temple or coven, that is their decision. If the child is hungry, sick and in worn-out clothes as a result, that's a matter for child welfare services. Jean Dudley ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74104-3189 918-631-3706 (office) 918-631-2194 (fax) [EMAIL PROTECTED] ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Locke v. Davey follow-up
Here are some preliminary thoughts on Eugene's question. Though I think Locke v. Davey was incorrectly decided, it is at least plausible to say that a government education grant that can be used for clergy training involves government in supporting the training of clergy. Because direct government support for religious training -- and especially for the training of clergy -- is a high voltage historical issue that has been controversial since the Founding, the Court allowed Washington to steer clear of it in a way that discriminates against religion. But the notion that a government grant program that is not specifically for education implicates Establishment concerns when the recipient chooses to use the money for some religious purpose does not have historical resonance. Indeed, since it is likely that many people at the time of the Founding tithed (perhaps the historians can tell us whether that is true), the idea would have been outrageous that a recipient of government money (such as the salary of a federal employee or a payment to a federal contractor) could not use some of that money for religious purposes. It would have meant that many religious persons could not have been government employees or contractors. Cf. the prohibition on religious tests for federal office. Since we don't have a high voltage historical Establishment controversy, the usual rule should apply, that discrimination against religious uses of such grants violates the Free Exercise Clause. That is not to say that a grant of money for purchase specifically of food could not contain a condition requiring that it be used only for food; consider the food stamp program. But if the recipient is entitled to use the money for purposes chosen by the recipient, there should be no discrimination against religious purposes. And a fungibility approach -- saying, for example, that no one who gets food stamps can give any money to a church, because money is fungible and it might as well be the government money that is being used -- would similarly discriminate against religion. Can you imagine such a program comprehensively governing the spending of a recipient? No Playboy magazines to be purchased with other money? No concerts? No newspapers? Such regulation would violate other parts of the First Amendment, wouldn't it? Mark Scarberry Pepperdine -Original Message- From: Volokh, Eugene To: Law Religion issues for Law Academics Sent: 5/2/2005 9:33 PM Subject: RE: Locke v. Davey follow-up I may be mistaken, but I've never heard of AFDC statutes limiting the use of the money to food, shelter, and the like; as best I can tell, recipients are free to spend the money on anything, including education. But since I didn't want to assume anything about the federal AFDC scheme, I asked about a state general relief or disability plan. So let me ask again, though with this point clarified: Say that the Washington Legislature is bothered by reports that welfare recipients under some state law welfare program (general relief, disability, etc.) are spending some of their payments on Bible Study classes. It therefore provides that welfare benefits -- which are otherwise usable by the recipient for any other purpose -- may not be used to pay for any theological education, whether a degree program (such as the one Davey wanted to use) or just an informal study program. Is this prohibition constitutional under Locke? Is it unconstitutional, because Locke is somehow different? I'd love to hear what people think. Thanks, Eugene -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Paul Finkelman Sent: Monday, May 02, 2005 8:34 PM To: Law Religion issues for Law Academics Subject: Re: Locke v. Davey follow-up The question might be how statutes are written. If the statutes limit use of money for certain things, then use of the money might be prohibited for *all* other things, not just religious ecucation; that would then be a law of general applicability. Jean Dudley wrote: Paul Finkelman wrote: are welfare payments tied to expected budget expenses -- food, housing, clothing, transportatoin, medical care, etc? Most welfare is AFDC, and is earmarked for helping children. If mother uses money for food and housing to pay the church, is that welfare fraud? Paul Finkelman I'd argue that although (some?) welfare funds are ostensibly for the child's welfare, it's up to the legal guardian/parent/s to decide what that welfare entails. If they opt to pay membership dues to a church, temple or coven, that is their decision. If the child is hungry, sick and in worn-out clothes as a result, that's a matter for child welfare services. Jean Dudley ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password
