Re: Locke v. Davey Question

Wed, 11 Jan 2006 13:02:02 -0800

Thanks, Marty. This is helpful.
 
But one problem with the Washington program was that it did allow funds to be used for religious instruction. Josh Davey could have dropped his major, taken exactly the same religious studies courses, and kept his scholarship.
 
Washington prohibited the funding of persons pursuing a degree in devotional study, not the funding of persons taking courses (even many courses) in devotional theology. The reason, so they said, was to protect citizens from being taxed to train the education of religious ministers.
 
I believe that many people go to Yale Divinity to prepare for a career in religious ministry. I suspect that certain denominations (perhaps Unitarians?) view a more "objective" or "non-devotional" approach to religious studies as the best education for a minister in their denomination. Perhaps even some Catholic Universities t! each theology in a way that would qualify as "non-devotional." Thus, some future clerics are funded and others are not. This looks like denominational discrimination under Larson, and thus even if there is no free ex violation, there may be an EC violation.
 
In other words, it is one thing to say "no funding for anyone tarining for the ministry." It is something very different to say that "schools that train ministers in certain ways are eligible foir funding and those that train ministers in certain other ways are not eligible for funding."
 
Am I making any sense?
 
Rick Duncan

Marty Lederman <[EMAIL PROTECTED]> wrote:
Perhaps I don't know enough (indeed, ! I'm certain I don't) about the nature of what is taught to prospective clergy at a Catholic or Protestant or Unitarian school.  But assuming (as I do) that such pedagogy involves "the study of the nature of God and religious truth," then as I understand Washington's program and its briefs, Promise Scholarships could not be used to pursue divinity majors at such schools.  To the extent a school's divinity education does not try to inculcate any particular religious beliefs, or teach students how to engage in ministry in accord with a particular Church's tenets (does that describe the Yale Div School? -- again, I should know, but don't), then it would not implicate the "no funding of religious instruction" provision of the Washington Constitution, and presumably the scholarship could be used there.
----- Original Message -----
Sent: Wednesday, January 11, 2006 2:25 PM
Subject: Re: Locke v. Davey Question

Marty's post is a very interesting and helpful one. But Washington claimed its law was designed to withhold state funding from persons training to become clergyman. But it used "majoring in devotional theology" as a proxy for training to become a clergman.
 
In my hypothetical, A, B & C were all pursuing a the! ology degree with the goal of having a career in ministry. B was doing so at a Catholic School, and C was (let's say) planning on becoming a Unitarian or mainstream Protestant clergyman following his religious studies at the Washington equivalent of Yale Divinity.
 
Is it permissible for the State of Washington to pay for the training of Catholic and Unitarian ministers while refusing equal funding  for Davey's clerical education?
 
Rick Duncan

Marty Lederman <[EMAIL PROTECTED]> wrote:
I'm not sure it's quite as complicated as all that.  The confusion arises because the Washington legislature decided to use "majoring in theology" as a rough statutory pro! xy for implementing its state constitutional prohibition on the use of public funds for religious instruction.  But the basic state constitutional distinction -- money can be used for study about religion, but not for religious instruction that attempts to inculcate beliefs -- is a very familiar one; indeed, it's the distinction that still governs federal constitutional prohibitions on the use of direct aid to support religious education (see Bowen v. Kendrick; O'Connor's opinion in Mitchell), and that distinbguishes what public schools can teach from what! they can't when it comes to, e.g., the bible.
 
As Washington explained in its brief in Davey, "the Washington Constitution forbids using public funds for religious instruction tha! t inculcates religious belief (or disbelief)."  However, the Washington Constitution does not prohibit such funds from being used for "the secular study of the topic of religion," such as "teaching the Bible as literature."  According to the Washington Supreme Court, its state constitution's bar on religious instruction only forbids public funding of "that category of instruction th! at resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, and conduct."  Thus, for example, the brief in Davey explained that public colleges and universities in Washington "teach about religion, but do not provide instruction to inculcate belief or disbelief in the doctrine of a particular religion.  For example, the University of Washington offers a number of courses in comparative religion. JA 66-74. But none of these courses are devotional in nature or designed to induce religious faith. Instead, religious ideas are studied as an aspect of the general intellectual and cultural history of societies and civilizations." 
 
As the state summarized in its reply brief (perhaps a bit too simplistically), public funds cannot be used to subsidize "the study of the nature of God and religious truth."
 
So far, so good, right?  Thus, if the Promise Scholarship program had simply provided that scholarship funds could not be used for "specifically religious instruction," or "religious indoctrination," or "the study of the nature of God and religious truth," it would merely have tracked definitions that have become familiar in federal constitutional law, and the distinction itself would! raise no entanglement or other constitutional problem (no problem, that is, distinct from the issue of basic discrimination against religion that was the principal question presented in Davey).
 
The problem of definition only arises in the Washington scholarsh! ip program because Washington decided to use "majoring in theology" as a rough proxy to ensure that funds were not used for "religious indoctrination."  The test Washington applied to determine which theology degrees were excluded basically tracked the "no funds for religious indoctrination" rule that it was intended to implement.  As the brief explained:  "students at a public or private university can receive a scholarship to study the secular subject of comparative religion, but Davey is disqualified from receiving a scholarship to pay for religio! us instruction in pursuing a theology degree."  In support of this distinction, the state cited cases such as McCollum, Schempp, Stone, and others for! the basic analogous proposition that public schools can't try to inculcate religious (or anti-religious) beliefs, but can teach about religion (e.g, comparative religion).  
 
So, if a theology degree at a particular school entails taking classes in which the school inculcates religious belief, and the study is "of the nature of God and religious truth," it's ineligible.  By contrast, if a theology (or "religion") degree entails classes dealing with comparative r! eligion, or the study of the sociology of religion, it is eligible.  That's the test, but the state itself doesn't even try to police it.  Again, according to the brief, "[i]t is up to the school the student is attending to determine, as the one with the best knowledge of its curriculum, whether the! student is pursuing a degree in theology. JA 126, 131, 137. The HEC Board does not make this determination. JA 128-30."
 
Davey's degree concededly fell on the former side of the line.  The Northwest College program was "designed to prepare students for vocational ministry as a pastor in the local church," and the "core c! ourses should enable the student to develop and express biblical concepts of the church and pastoral ministry and acquire skills needed to engage in effective pastoral ministry."  Thus there was no problem deciding that Davey's studies were ineligible.
 
The potential problem, of course -- not in Davey but in some other hypothetical case -- is, as Tom and Doug indicate, that there could well be a theology degree at a particular school that involves a good degree of both sorts of study:  some classes intended to inculcate, or teach prayer and devotion, others involving study of religion from a secular or sociological perspective.  And there may even be some individual classes that involve a good helping of both.  It's not clear how Washington would deal with that sort of "mixed" program.  If it wished to ensure 100% compliance with its state constitutional prohibition, presumably it would impose a bright-line rule that a student is ineligible for a scholarship if her degree requires any classes involving religious indoctrination. 
 
But the important point ! is to recognize the critical distinction Washington is trying to draw:  It will not let public funds be used for precisely those forms of religious instruction that the state itself could not provide in its state-run schools.  Perhaps that exclusion is a Free Exercise violation, as Scalia argued.  But the problem is not in the indeterminacy of the line-drawing.  If it were, then several of the Court's own constitutional doctrines would have been subject to the same objection for the past several decades.
 
 
----- Original Message -----
Sent: Wednesday, January 11, 2006 1:12 PM
Subject: RE: Locke v. Davey Question

Thanks, Tom. I think these factual issues are relevant for entanglement purposes, and they also raise denominational discrimination issues under the EC.
 
Lets take 3 students--A, B and C--all of whom are! majoring in theology with the goal of a career in religious ministry. Student A (Josh Davey) is denied a scholarship because his school's viewpoint is devotional. Students B & C (at, say, Gonzaga and the Washington counterpart of Yale Divinity) are funded because their schools (their denominations) take a different approach to the study of religion.
&nb! sp;
How is this anything but denominational discrimination that violates the "clearest command" of the EC under Larson v. Valente?
 
Of course, the Supreme Court's grant of cert only encompassed Davey's free exercise claim, so I suppose the EC question remains an open one in the aftermath of Davey.! How should the Court decide the Larson/EC issue?
 
Rick



Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
 

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner
Yahoo! Photos – Showcase holiday pictures in hardcover
Photo Books. You design it and we’ll bind it!
_______________________________________________
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 li! st 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.



Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
 

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

! "I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner
Yahoo! Photos – Showcase holiday pictures in hardcover
Photo Books. You design it and we’ll bind it!
_______________________________________________
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.



Rick Duncan
Welpton Professor of Law
University of Nebraska College of Law
Lincoln, NE 68583-0902
 

"When the Round Table is broken every man must follow either Galahad or Mordred: middle things are gone." C.S.Lewis, Grand Miracle

"I will not be pushed, filed, stamped, indexed, briefed, debriefed, or numbered." --The Prisoner

Yahoo! Photos
Ring in the New Year with Photo Calendars. Add photos, events, holidays, whatever.
_______________________________________________
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.

Reply via email to