RE: Locke v. Davey Analysis
To the extent that the decision in Locke is a product of general themes in Rehnquists constitutional jurisprudence, I think the theme of states rightsmentioned earlier by Rick Tepkershould not be overlooked. Rehnquist wrote a series of important Establishment Clause opinions upholding indirect funding programs that included religious beneficiaries (Mueller, Zobrest, Zelman), citing the importance of neutrality and private choice. And yet he rejected the Free Exercise argument in Locke even though the program at issue there was not neutral and did not honor the private choice of those wishing to pursue religious careers. In each context, however, Rehnquist was according discretion to the states by interpreting the First Amendment narrowly. I analyze Rehnquists role in the indirect funding cases--both the Establishment Clauses cases and Locke--in a book chapter in The Rehnquist Legacy (Craig Bradley ed., Cambridge 2006). Daniel O. Conkle *** Daniel O. Conkle Robert H. McKinney 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 Douglas Laycock Sent: Sunday, October 01, 2006 2:29 PM To: religionlaw@lists.ucla.edu Subject: RE: Locke v. Davey Analysis Locke v. Davey does not announce a requirement of anti-religious motive, as I show in a sentence-by-sentence parsing of the opinion in the Harvard Law Review in 2004. It is primarily a burden opinion: refusal to fund does not impose a significant burden, which was indeed a longstanding Rehnquist theme. There is also talk about the importance and narrowness of the state's interest in not funding clergy -- at one point he says the only interest at issue here is the interest in not funding the training of clergy -- and other talk that would seem to make the state's interests irrelevant and universalize the rule that refusal to fund is not a burden. Sherbert is distinguished as a burden opinion, not as a motive opinion. It is true that judges deciding or defending Employment Division v. Smith have characterized Sherbert as a discrimination case. But that is not at all the same as finding bad motive behind that discrimination. Locke v. Davey itself was clearly a discrimination case, and yet the Court found no bad motive. Rehnquistalso distinguishes the case striking down rules barring clergy from the legislature (Pate?), which were enacted in 1796; no one has claimed that that was a motive case. Rehnquist takes up the question of motive only in response to Scalia's dissent, and only after distinguishing cases of burdensome regulation and of regulation that intereferes with political rights. Quoting Gary McCaleb [EMAIL PROTECTED]: I will weigh in but briefly--I'm spending my Saturday dealing with the Ninth Circuit's wayward First Amendment analyses on another case--but note this as background to Davey. I litigated the case at district court and on some of the appeal work before I left ACLJ. The scholarships were awarded based on satisfying three criteria: a defined level of academic success; a defined level of financial need based on family income; and intent to attend a qualifying Washington university (including private, pervasively sectarian universities). Davey could have taken exactly the same courses he would take as a theology major simply by selecting a major that would not have made the nature of his coursework evident, but to put it simply, Mr. Davey wasn't that kind of guy. It was a classic situation religion-neutral, need/performance driven scholarship system that was driven by a purpose statement of preparing Washington students for a productive future. How the state's interest in non-appropriation of state funds for theology training plays into that, I don't know. Its hyper-separation on steroids. As to Rehnquist's apparent need to discern animus to justify a free exercise claim, that seems to be far outside the four corners of the simple text of the free speech clause and leaves the government with rather broad authority to chill religious _expression_ based on little more than notional interests. Certainly, I think animus in Davey could be properly inferred from the program's purpose statement, as the state was making a value judgement that being a pastor would not be a productive role for a Washington citizen. Anyway, this is off the top of my head--gotta get back to briefing. Sour grapes here? Well...sure. I could barely recognize the case when I read the opinion.my sense is the Court picked the wrong vehicle to draw a line, and ran over both the Constitutiona and a sterling young man in the process. /S/ Gary S. McCaleb Gary S. McCaleb Senior Counsel (480) 444-0020 ext. 8046 (480
RE: Locke v. Davey Analysis
Locke v. Davey does not announce a requirement of anti-religious motive, as I show in a sentence-by-sentence parsing of the opinion in the Harvard Law Review in 2004. It is primarily a burden opinion: refusal to fund does not impose a significant burden, which was indeed a longstanding Rehnquist theme. There is also talk about the importance and narrowness of the state's interest in not funding clergy -- at one point he says the only interest at issue here is the interest in not funding the training of clergy -- and other talk that would seem to make the state's interests irrelevant and universalize the rule that refusal to fund is not a burden.Sherbert is distinguished as a burden opinion, not as a motive opinion. It is true that judges deciding or defending Employment Division v. Smith have characterized Sherbert as a discrimination case. But that is not at all the same as finding bad motive behind that discrimination. Locke v. Davey itself was clearly a discrimination case, and yet the Court found no bad motive. Rehnquist also distinguishes the case striking down rules barring clergy from the legislature (Pate?), which were enacted in 1796; no one has claimed that that was a motive case. Rehnquist takes up the question of motive only in response to Scalia's dissent, and only after distinguishing cases of burdensome regulation and of regulation that intereferes with political rights.Quoting Gary McCaleb [EMAIL PROTECTED]: I will weigh in but briefly--I'm spending my Saturday dealing with the Ninth Circuit's wayward First Amendment analyses on another case--but note this as background to Davey. I litigated the case at district court and on some of the appeal work before I left ACLJ. The scholarships were awarded based on satisfying three criteria: a defined level of academic success; a defined level of financial need based on family income; and intent to attend a qualifying Washington university (including private, pervasively sectarian universities). Davey could have taken exactly the same courses he would take as a theology major simply by selecting a major that would not have made the nature of his coursework evident, but to put it simply, Mr. Davey wasn't that kind of guy. It was a classic situation religion-neutral, need/performance driven scholarship system that was driven by a purpose statement of preparing Washington students for a productive future. How the state's interest in non-appropriation of state funds for theology training plays into that, I don't know. Its hyper-separation on steroids. As to Rehnquist's apparent need to discern animus to justify a free exercise claim, that seems to be far outside the four corners of the simple text of the free speech clause and leaves the government with rather broad authority to chill religious _expression_ based on little more than notional interests. Certainly, I think animus in Davey could be properly inferred from the program's purpose statement, as the state was making a value judgement that being a pastor would not be a productive role for a Washington citizen. Anyway, this is off the top of my head--gotta get back to briefing. Sour grapes here? Well...sure. I could barely recognize the case when I read the opinion.my sense is the Court picked the wrong vehicle to draw a line, and ran over both the Constitutiona and a sterling young man in the process. /S/ Gary S. McCaleb Gary S. McCaleb Senior Counsel (480) 444-0020 ext. 8046 (480) 444-0028 fax [EMAIL PROTECTED] mailto:[EMAIL PROTECTED] CONFIDENTIALITY NOTICE This electronic mail message and any accompanying documents contain information belonging to the sender which is confidential and legally privileged. This information is intended only for the use of the individual or entity to whom it was sent as indicated above. If you are not the intended recipient, any disclosure, copying, distribution, or action taken in reliance on the contents of the information contained in this electronic mail message is strictly prohibited. If you have received this message in error, please delete it immediately, and call (480-444-0020) to advise me that you received it. Thank you. PRIVILEGED AND CONFIDENTIAL - ATTORNEY CLIENT COMMUNICATION/ATTORNEY WORK PRODUCT From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Saturday, September 30, 2006 8:10 AM To: religionlaw@lists.ucla.edu Subject: Re: Locke v. Davey Analysis I think this is not a persuasive reading of either the opinion or any opinion onto which the author, Rehnquist, would have signed on. Rehnquist always looked for the dispositive element in a case, and was rarely interested in multifactorial tests, or the kind of intuitive weighing they require. If you trace Rehnquist's free exercise opinions whether maj or diss, he had a consistent
RE: Locke v. Davey Analysis
Locke is a mystery to me. It seems to be a triumph of Chief Justice Rehnquist's quest for a wide deference in the name of states' rights. On the other hand,WHR's analysis of discrimination is impossible to support. He seems to say that discrimination (a plain and open disparate treatment) is okay as long as it doesn't involve criminal consequences, substantial civil or other legal "penalties." Because onlybenefits are at stake, the disparate treatment isn't constitutionally significant. This seems athrowback to the old discredited "rights-privileges" distinction. For the most part, I agree with Justice Scalia's analysis, although I think his hypothetical about Western Europe and France is a stretch at best. But Chief Justice Rehnquist's rationale leads to another hypo that is, I think, more telling. WHR cites US v American Library Association in favor of a broad managerial discretion of public libraries, extending to a variety of choices about what goes into libraries and what does not (thanks to internet filters). The comparison is way off point. Suppose the managers of a public library said no theology students may use the library, or the stacks, or the computers, or the copying machines? WHR's analysis seems to lead to the conclusion that there's no discrimination because there's no "penalty." Scalia's analysis seems far more persuasive -- and far more consistent with the bulk of civil rights / civil liberties precedent: any adverse treatment that leaves an individual worse off than the "baseline" defined by statute or other legal authority is discrimination, and if it is based on a prohibited ground (race, sex, religion etc.), it is constitutionally or legally problematic. From: [EMAIL PROTECTED] on behalf of Greg BaylorSent: Fri 9/29/2006 1:54 PMTo: 'Law Religion issues for Law Academics'Subject: Locke v. Davey Analysis I am curious as to how those on this list wouldcharacterize the analysis used by the majority inLocke v. Davey. The Court obviously rejected the notion that non-neutral laws essentially always violate the Free Exercise Clause, (presumably) without regard to the magnitude of the burden imposed on the claimant's religious exercise. At the same the Court did not apply a straightforward substantial burden/compelling state interest/least restrictive means analysis. As I read the majority opinion, after acknowledging the non-neutrality of the law in question, the Court looked at the magnitude of the burden not in isolation, but rather in the context of other factors, including the character of the law that caused the burden on Davey and the importance of the state's interest. [When I say "the character of the law that caused the burden on Davey," I am referring to the Court's observations about the otherwise religion-friendly character of Washington's education aid law (e.g., Davey could have kept his scholarship and majored in something other than devotional theology at the seriously religious Northwest College).] In other words, the Court seemed to be applying a multifactorial approach, under which a claimant's weakness on one factor (e.g., burden) theoretically might be rehabilitated by his or her strength on others (e.g., the magnitude of the state's interest). Do you agree or disagree? Thanks. Greg Baylor Gregory S. BaylorDirector, Center for Law Religious FreedomChristian Legal Society8001 Braddock Road, Suite 300Springfield, VA 22151(703) 642-1070 x 3502(703) 642-1075 fax[EMAIL PROTECTED]http://www.clsnet.org ___ 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.
