Colorado Christian
The State has announced it will not be appealing the decision of the 10th Circuit invalidating its restriction on aiding students attending pervasively sectarian universities. Marc Stern -Original Message- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of [EMAIL PROTECTED] Sent: Monday, August 04, 2008 1:09 PM To: Law Religion issues for Law Academics; Law Religion issues for Law Academics Cc: Volokh, Eugene Subject: Re: Conflicts between religious exefcise and gay rights and cudgels Well, I'm surely not trying to pooh-pooh the religious concerns -- merely to try to probe what, exactly, they are, and how much these conflicts differ from those we saw several decades ago. Eugene helpfully identifies two sorts of cases: 1. Businesses and property owners being required to treat gays and straights alike. OK, I suppose I must concede that I'm not very moved by these cases, nor do I see how those requirements impose much of a burden on religious exercise. Do they require some business owners (and employees) to do things they find distasteful -- often due to religiously inspired moral beliefs? Surely. And that's something to be regretted. But that's true of race-discrimination laws, as well -- and of basic laws prohibiting discrimination against unmarried couples, and on the basis of sexual orientation in the provision of commercial services. There are many, many shopkeepers, landlords, employers, restaurants, etc., that would rather not deal with gays and lesbians, often because of moral objections. (I doubt, in other words, that such discrimination is as relatively infrequent as Eugene assumes in many places in the United States.) Yet if legislatures conclude, as I do, that gays an! d lesbi ans should not be treated as second-class citizens in the commercial marketplace, then is there any really compelling reason to provide religious exemptions here that are not provided for analogous race and sex discrimination? On this one, by the way, I would respectfully dissent from Eugene's suggestion that gays and lesbians are seeking such equal treatment as a cudgel against religious objectors -- that we should question whether gays and lesbians really suffer much harm by being denied services or jobs or housing on the basis of their sexual orientation because they could get such services -- often at a higher quality -- just fine from lots of other providers, suggesting that they are insisting upon equal treatment merely in order to commandeer objectors to act in ways that offend their sincere beliefs. With all respect, I think this sort of standard libertarian skepticism about the need for antidiscrimination laws significantly trivializes very serious harms. But that's obviously a much broader topic, somewhat far afield from what's germane to this list. 2. Loss of tax benefits. Is this a real concern? I assume that sexual-orientation-discrimination rules in this context will be treated more or less like sex-discrimination rules -- i.e., there will be reasonable exemptions for religious institutions, roughly in line with the ministerial exemption and the title IX exemptions. I can't see much of a prospect for a Bob-Jones-like, across-the-board, no-religious-exemptions denial of tax benefits here unless and until we see the day when discrimination against gays and lesbians is as categorically viewed as immoral as race discrimination is today. That is to say, not likely in my lifetime. In any event, I'm grateful to Eugene for making the potential conflicts a bit more concrete. -- Original message -- From: Volokh, Eugene [EMAIL PROTECTED] I wonder which way the cudgel is being exploited (or maybe both). It seems to me, for instance, that religiously motivated discrimination in public accommodations against gays is likely also a relatively infrequent phenomenon, partly because it's financially costly to the discriminators, and one that is not terribly tangibly harmful (setting aside symbolic offense, which cuts both ways) to the target. Yet we see cases in which businesses and property owners that provide services are being forced to provide such services to same-sex commitment ceremonies (or being punished by the law for failure to provide such services), even though I suspect that the same-sex couples could get such services -- often at a higher quality -- just fine from lots of other providers. Couldn't one equally say that equal rights law is here being exploited as a cudgel against religious objectors? Moreover, the very analogy to race discrimination, it seems to me, shows why the practical concerns of religious groups that have religious objections to homosexuality are reasonable. Consider how the law has treated even religious groups that engage in race discrimination, for instance in cases such as Bob Jones. If the law adopts the proposed analogy between sexual orientation
Colorado Christian University v. Weaver
Tenth Circuit strikes down Colorado's exclusion of pervasively sectarian colleges from state scholarship programs; distinguishing Locke v. Davey. I hope these links work; I'm not sure I can forward them. Links: -- [1] https://ecf.ca10.uscourts.gov/cmecf/servlet/TransportRoom?servlet=DocketReportFilter.jsp?caseId=53441strJSPName=DocketReportFilter.jsp%3FcaseId=53441[1] [2] https://ecf.ca10.uscourts.gov/docs1/01002768623uid=a805f9f233bfa62c[2] Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 Links: -- [1] https://ecf.ca10.uscourts.gov/cmecf/servlet/TransportRoom?servlet=DocketReportFilter.jsp?caseId=53441amp;strJSPName=DocketReportFilter.jsp%3FcaseId=53441 [2] https://ecf.ca10.uscourts.gov/docs1/01002768623amp;uid=a805f9f233bfa62c ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Colorado Christian University Case: EC Compelling Interest
Okay, one last time for me too. Marty has made his point very clearly; I simply think his argument is not persuasive, nor does it deal with the Colorado statute that determines which religious colleges may participate in Colorado's scholarship program for low-income students and which religious colleges are excluded. The Colorado legislature has adopted a muti-part definition of pervasively sectarian to decide which religious colleges may participate in the scholarship plan and which may not. Some religious schools, although religious and even affiliated with a particular religious denomination, are funded because they satisfy that multi-part test and other religious colleges are excluded because they fail that multi-part test. The dist ct held (I believe correctly) that this religious classification constitutes denominational discrimination. This strikes at the core of the EC because some religious colleges are being funded and others are denied funds. The non-pervasively sectarian colleges are not secular colleges (and I doubt they would claim to be). They are religious colleges that have organized themselves in ways which satisfy that multi-part test (e.g. their funds do not come primarily or predominantly from sources advocating a particular religion). So, I guess, Marty and I will have to agree to disagree. I believe the dist ct was correct in finding denominational discrimination (although incorrect in holding that Colorado has a compelling interest which justifies denominational discrimination). Marty thinks the dist ct erred in finding denominational discrimination. Let's see how this one sorts itself out in the ct of appeals (and perhaps at the SCt). Rick Duncan Marty Lederman [EMAIL PROTECTED] wrote: OK, one last try -- apologies in advance to all those of you who have read this many times over, but obviously I'm not doing a very good job making my point. Let's put it this way: If the Colorado legislature had never enacted a law mentioning pervasively sectarian schools, the result in this case would be exactly the same. The Colorado Constitution, according to the Court, expressly prohibits the use of public funds for religious education -- period, in all schools. (I don't know whether that's a proper construction of the Colorado Constitution -- an interesting question under state law, I suppose.) Any aid going to CCU would necessarily subsidize religious education and mandatory participation in religious services. So CCU could never receive any aid -- even if no statute had ever been enacted. And that's not true of Denver and Regis -- at both of those schools, a student could readily receive the aid and use it on a wholly secular education. So those schools could participate at least some of the time, i.e., in cases where the aid will not subsidize religious indoctrination. There are, by stipulation, no such cases at CCU. Denominational discrimination has nothing to do with it. One might argue -- perhaps folks such as Rick and Mark S. and possibly Doug would argue -- that it is unconstitutional for the Colorado Constitution to prohibit subsidizing religious indoctrination in some or all of these programs. That's fair -- but it would run up against Locke in the context of indirect funding programs, and would be inconsistent with Mitchell, Bowen v. Kendrick, and numerous other precedents in the context of direct-aid programs. If one accepts, however, that Colorado can decline to subsidize faith-transformative education and ritual, as Locke suggests, then the case was rightly decided, and does not implicate Larson. - Original Message - From: Rick Duncan To: Law Religion issues for Law Academics Sent: Thursday, July 26, 2007 11:27 AM Subject: RE: Colorado Christian University Case: EC Compelling Interest Christopher Lund writes: I have a somewhat different take than Marty. My sense is that this is denominational discrimination. If Colorado say had special reporting and registration requirements, but only for pervasively sectarian schools like CCU (but not for other religious schools), that would fall under Larson, right? Isn't Larson itself the root of this problem? It was decided in 1982, when the pervasively sectarian rule was in full effect. What that rule meant was that some denominational discrimination was not just permitted, but constitutionally required. Larson does not address that wrinkle. But seeing the pervasively sectarian limitation on funding as an implicit exception to Larson's rule about denominational discrimination seems to be the only way of squaring Larson's text with the aid cases of that era. I think Prof. Lund makes several good points here. First, it is clear that the classification made by Colorado between pervasively sectarian and non-pervasively sectarian religious colleges
Re: Colorado Christian University Case: EC Compelling Interest
OK, one last try -- apologies in advance to all those of you who have read this many times over, but obviously I'm not doing a very good job making my point. Let's put it this way: If the Colorado legislature had never enacted a law mentioning pervasively sectarian schools, the result in this case would be exactly the same. The Colorado Constitution, according to the Court, expressly prohibits the use of public funds for religious education -- period, in all schools. (I don't know whether that's a proper construction of the Colorado Constitution -- an interesting question under state law, I suppose.) Any aid going to CCU would necessarily subsidize religious education and mandatory participation in religious services. So CCU could never receive any aid -- even if no statute had ever been enacted. And that's not true of Denver and Regis -- at both of those schools, a student could readily receive the aid and use it on a wholly secular education. So those schools could participate at least some of the time, i.e., in cases where the aid will not subsidize religious indoctrination. There are, by stipulation, no such cases at CCU. Denominational discrimination has nothing to do with it. One might argue -- perhaps folks such as Rick and Mark S. and possibly Doug would argue -- that it is unconstitutional for the Colorado Constitution to prohibit subsidizing religious indoctrination in some or all of these programs. That's fair -- but it would run up against Locke in the context of indirect funding programs, and would be inconsistent with Mitchell, Bowen v. Kendrick, and numerous other precedents in the context of direct-aid programs. If one accepts, however, that Colorado can decline to subsidize faith-transformative education and ritual, as Locke suggests, then the case was rightly decided, and does not implicate Larson. - Original Message - From: Rick Duncan To: Law Religion issues for Law Academics Sent: Thursday, July 26, 2007 11:27 AM Subject: RE: Colorado Christian University Case: EC Compelling Interest Christopher Lund writes: I have a somewhat different take than Marty. My sense is that this is denominational discrimination. If Colorado say had special reporting and registration requirements, but only for pervasively sectarian schools like CCU (but not for other religious schools), that would fall under Larson, right? Isn't Larson itself the root of this problem? It was decided in 1982, when the pervasively sectarian rule was in full effect. What that rule meant was that some denominational discrimination was not just permitted, but constitutionally required. Larson does not address that wrinkle. But seeing the pervasively sectarian limitation on funding as an implicit exception to Larson's rule about denominational discrimination seems to be the only way of squaring Larson's text with the aid cases of that era. I think Prof. Lund makes several good points here. First, it is clear that the classification made by Colorado between pervasively sectarian and non-pervasively sectarian religious colleges constitutes denominational discrimination. Imagine a Colorado zoning law that limited special use permits in a particular zone to colleges or universities that are not pervasively sectarian? Surely, this law violates the EC under Larson. Moreover, whatever the EC may once have said about indirect funding of pervasively sectarian schools, it is now completely clear that the EC permits indirect funding of all religious colleges and that the EC continues to prohibit denominational discrimination. In other words, the existing EC no longer speaks with a forked tongue on this issue--states may include all religious colleges in indirect scholarship programs and states may not engage in denominational discrimination. Funding issues are always difficult under the EC, but unequal funding along denominational lines continues to strike at the heart of the EC's proscription of religious establishments. If Colorado wishes to withhold funding from religious education, it should withhold funding from all religious colleges and cease its practice of discriminatory religious classifications. Or, it should accept the SCt's modern notion that a neutral private choice scholarship program funds private educational choices for everyone and does not advance or endorse any religion. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. -- Looking for a deal
RE: Colorado Christian University Case: EC Compelling Interest
Christopher Lund writes: I have a somewhat different take than Marty. My sense is that this is denominational discrimination. If Colorado say had special reporting and registration requirements, but only for pervasively sectarian schools like CCU (but not for other religious schools), that would fall under Larson, right? Isn't Larson itself the root of this problem? It was decided in 1982, when the pervasively sectarian rule was in full effect. What that rule meant was that some denominational discrimination was not just permitted, but constitutionally required. Larson does not address that wrinkle. But seeing the pervasively sectarian limitation on funding as an implicit exception to Larson's rule about denominational discrimination seems to be the only way of squaring Larson's text with the aid cases of that era. I think Prof. Lund makes several good points here. First, it is clear that the classification made by Colorado between pervasively sectarian and non-pervasively sectarian religious colleges constitutes denominational discrimination. Imagine a Colorado zoning law that limited special use permits in a particular zone to colleges or universities that are not pervasively sectarian? Surely, this law violates the EC under Larson. Moreover, whatever the EC may once have said about indirect funding of pervasively sectarian schools, it is now completely clear that the EC permits indirect funding of all religious colleges and that the EC continues to prohibit denominational discrimination. In other words, the existing EC no longer speaks with a forked tongue on this issue--states may include all religious colleges in indirect scholarship programs and states may not engage in denominational discrimination. Funding issues are always difficult under the EC, but unequal funding along denominational lines continues to strike at the heart of the EC's proscription of religious establishments. If Colorado wishes to withhold funding from religious education, it should withhold funding from all religious colleges and cease its practice of discriminatory religious classifications. Or, it should accept the SCt's modern notion that a neutral private choice scholarship program funds private educational choices for everyone and does not advance or endorse any religion. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Looking for a deal? Find great prices on flights and hotels with Yahoo! FareChase.___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Colorado Christian University Case: EC Compelling Interest
Just a brief response to Marty. 1.The tuition assistance programs in the case are Witters-Zelman-Davey indirect, private choice programs. So there is no doubt that the EC permits Colorado to include all religious colleges, including pervasively sectarian religious colleges, in the program. 2. Not only does the EC permit Colorado to include pervasively sectarian schools in the scholarship program, the EC also forbids Colrado from engaging in denominational discrimination. 3. Colrado has indeed engaged in intentional discrimination by explicitly excluding some religious colleges and including other religious colleges. I quote from the district ct's opinion in the case: The term pervasively sectarian is statutorily defined in C.R.S. § 23-3.5.105. That definition is supplied in the negative: an institution is not pervasively sectarian if it meets six criteria: (i) the faculty and students are not exclusively of one religious persuasion; (ii) there is no required attendance at religious convocations or services; (iii) there is a strong commitment to principles of academic freedom; (iv) there are no required courses in religion or theology that tend to indoctrinate or proselytize; (v) the governing board does not reflect, nor is the membership limited to, persons of any particular religion; and (vi) funds do not come primarily or predominantly from sources advocating a particular religion. 4. The dist ct correctly viewed this as denominational discrimination: In Larson, the state of Minnesota amended its registration and reporting requirements for charities engaging in monetary solicitation by partially revoking a blanket exemption for religious organizations. Under the new scheme, religious organizations that received more than half of their total contributions from members or affiliated organizations were required to comply with the registration and reporting requirements. The Supreme Court found that the new rule impermissibly distinguished between well-established churches on the one hand, and churches which are new and lacking in a constituency on the other, or between churches who, as a matter of policy or doctrine, favor public solicitation over general reliance on financial support from members. Id. at 246 n. 23. Explaining that the Lemon test was intended to apply to laws affording a uniform benefit to all religions, and not to provisions ... that discriminate among religions, id. at 252 (footnote omitted), the Court instead analyzed the constitutionality of the statute by simply applying the strict scrutiny test, requiring that the statutory classification be justified by a compelling governmental interest and be closely fitted to further that interest. Id. at 247. Colorado's tuition assistance programs similarly differentiate among sectarian institutions. It gives tuition assistance to those which segregate religious indoctrination from secular education, and denies assistance to those which, by policy or doctrine, freely mix the two. In such situations, Larson directs that the Court analyze CCU's Establishment Clause claim by applying the strict scrutiny test. 5. I can't accept that Colrado's antiestablishment interest in not funding scholarships for students attending pervasively sectarian religious colleges justifies a violation of what the Supreme Court has called the clearest command of the Establishment Clause. Colorado may exclude all religious colleges from its scholarship program and thereby follow its own anti-establishment rules without violating the principle of denominational equality under the federal EC. We would still have a Locke v. Davey Free Ex issue, but the Larson problem would go away. But so long as Colorado insists on providing scholarships for students who attend certain religious colleges, while denying scholarships to students who attend other religious colleges, it will be in flagrant violation of the EC Larson. Cheers, Rick Duncan [EMAIL PROTECTED] wrote: Rick, with all respect, I think you're simply ignoring the rationale of the Colorado statute and constitution. Yes, Colorado permits *some* religiously affiliated colleges to participate in the programs -- it allows, e.g., aid to Regis University and the Univ. of Denver -- because *some of those religious colleges permit their students to obtain a wholly secular education.* The aid to Regis and Denver, that is to say, does not necessarily support religious inculcation and spiritual transformation. Indeed, to the extent those schools do engage in such activities, the state aid may *not* subsidize such activities, under both the Federal and State Constitutions. At CCU, by contrast, virtually all education is religious in nature, and every student must participate in religious services, and thus state aid would *invariably* subsidize religious inculcation, which is unconstitutional. That's why CCU is
RE: Colorado Christian University Case: EC Compelling Interest
I think the Court would distinguish Locke as a clergy-education case. Mark S. Scarberry Pepperdine University School of Law From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Christopher C. Lund Sent: Wednesday, July 25, 2007 1:29 PM To: Law Religion issues for Law Academics Subject: RE: Colorado Christian University Case: EC Compelling Interest I have a somewhat different take than Marty. My sense is that this is denominational discrimination. If Colorado say had special reporting and registration requirements, but only for pervasively sectarian schools like CCU (but not for other religious schools), that would fall under Larson, right? Isn't Larson itself the root of this problem? It was decided in 1982, when the pervasively sectarian rule was in full effect. What that rule meant was that some denominational discrimination was not just permitted, but constitutionally required. Larson does not address that wrinkle. But seeing the pervasively sectarian limitation on funding as an implicit exception to Larson's rule about denominational discrimination seems to be the only way of squaring Larson's text with the aid cases of that era. I guess the question now is whether Zelman's approval of indirect aid to pervasively sectarian institutions makes a Larson claim possible when such institutions are excluded. I'm not unsympathetic, but it seems a hard argument to make, especially given the Court's rejection of the EC claim in Locke v. Davey (fn10). ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Colorado Christian University Case: EC Compelling Interest
Hey, Chris. It's not as if Colorado has it in for pervasively sectarian schools. It has a constitutional mandate not to provide aid that will go to religious education -- at any schools, pervasively sectarian or otherwise . . . or secular, for that matter. For ease of administration of this constitutional rule, the legislature then passed a statute that simply provides that if all of a school's pedagogy is taught from a perspective of religious transformation (or, in any event, if every student is required to take such classes and engage in religious exercises), then that school is entirely ineligible for aid, because the aid would invariably be used in a way that is unconstitutional. That's not the case at Regis and Denver -- a student can attend those schools without the aid being put to religious uses, and therefore the question of aid to those schools must be assessed on a case-by-case basis. Such a case-specific analysis would be pointless, however, at CCU because, as CCU concedes, if the aid were used at CCU, it would necessarily be used for religious inculcation. Honestly, I just don't see how this even implicates the concern about denominational discrimination. - Original Message - From: Christopher C. Lund To: Law Religion issues for Law Academics Sent: Wednesday, July 25, 2007 3:29 PM Subject: RE: Colorado Christian University Case: EC Compelling Interest I have a somewhat different take than Marty. My sense is that this is denominational discrimination. If Colorado say had special reporting and registration requirements, but only for pervasively sectarian schools like CCU (but not for other religious schools), that would fall under Larson, right? Isn't Larson itself the root of this problem? It was decided in 1982, when the pervasively sectarian rule was in full effect. What that rule meant was that some denominational discrimination was not just permitted, but constitutionally required. Larson does not address that wrinkle. But seeing the pervasively sectarian limitation on funding as an implicit exception to Larson's rule about denominational discrimination seems to be the only way of squaring Larson's text with the aid cases of that era. I guess the question now is whether Zelman's approval of indirect aid to pervasively sectarian institutions makes a Larson claim possible when such institutions are excluded. I'm not unsympathetic, but it seems a hard argument to make, especially given the Court's rejection of the EC claim in Locke v. Davey (fn10). -- From: [EMAIL PROTECTED] To: religionlaw@lists.ucla.edu Subject: Re: Colorado Christian University Case: EC Compelling Interest Date: Tue, 24 Jul 2007 20:58:40 + Rick, with all respect, I think you're simply ignoring the rationale of the Colorado statute and constitution. Yes, Colorado permits *some* religiously affiliated colleges to participate in the programs -- it allows, e.g., aid to Regis University and the Univ. of Denver -- because *some of those religious colleges permit their students to obtain a wholly secular education.* The aid to Regis and Denver, that is to say, does not necessarily support religious inculcation and spiritual transformation. Indeed, to the extent those schools do engage in such activities, the state aid may *not* subsidize such activities, under both the Federal and State Constitutions. At CCU, by contrast, virtually all education is religious in nature, and every student must participate in religious services, and thus state aid would *invariably* subsidize religious inculcation, which is unconstitutional. That's why CCU is categorically excluded -- and why it's distinguishable from Regis and Denver. This simply isn't a case of denominational discrimination. The state aid cannot be used for any religious teaching or services, full stop -- of *any* denomination, and at any school, whether it be CCU or Regis or Denver or the Univ. of Colorado. (Indeed, I assume it also cannot be used to teach the propriety or virtue of atheism, either.) ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
RE: Colorado Christian University Case: EC Compelling Interest
I have a somewhat different take than Marty. My sense is that this is denominational discrimination. If Colorado say had special reporting and registration requirements, but only for pervasively sectarian schools like CCU (but not for other religious schools), that would fall under Larson, right? Isn't Larson itself the root of this problem? It was decided in 1982, when the pervasively sectarian rule was in full effect. What that rule meant was that some denominational discrimination was not just permitted, but constitutionally required. Larson does not address that wrinkle. But seeing the pervasively sectarian limitation on funding as an implicit exception to Larson's rule about denominational discrimination seems to be the only way of squaring Larson's text with the aid cases of that era. I guess the question now is whether Zelman's approval of indirect aid to pervasively sectarian institutions makes a Larson claim possible when such institutions are excluded. I'm not unsympathetic, but it seems a hard argument to make, especially given the Court's rejection of the EC claim in Locke v. Davey (fn10). From: [EMAIL PROTECTED]: [EMAIL PROTECTED]: Re: Colorado Christian University Case: EC Compelling InterestDate: Tue, 24 Jul 2007 20:58:40 + Rick, with all respect, I think you're simply ignoring the rationale of the Colorado statute and constitution. Yes, Colorado permits *some* religiously affiliated colleges to participate in the programs -- it allows, e.g., aid to Regis University and the Univ. of Denver -- because *some of those religious colleges permit their students to obtain a wholly secular education.* The aid to Regis and Denver, that is to say, does not necessarily support religious inculcation and spiritual transformation. Indeed, to the extent those schools do engage in such activities, the state aid may *not* subsidize such activities, under both the Federal and State Constitutions. At CCU, by contrast, virtually all education is religious in nature, and every student must participate in religious services, and thus state aid would *invariably* subsidize religious inculcation, which is unconstitutional. That's why CCU is categorically excluded -- and why it's distinguishable from Regis and Denver. This simply isn't a case of denominational discrimination. The state aid cannot be used for any religious teaching or services, full stop -- of *any* denomination, and at any school, whether it be CCU or Regis or Denver or the Univ. of Colorado. (Indeed, I assume it also cannot be used to teach the propriety or virtue of atheism, either.) -- Original message --From: Rick Duncan [EMAIL PROTECTED] Marty: I don't think Locke controls the much different Free Ex issue in this case, but setting aside Locke, Colorado has still engaged in denominational discrimination in a Zelman-like, true private choice scholarship program. Under the EC, it is not only permissible to include pervasivlely sectarian schools in a voucher program, it is forbidden under Larson to exclude some religious colleges while including others. There is no play in the joints issue here--the EC forbids discrimination among religions. The district ct correctly recognized the Larson denominational discrimination violation, but incorrectly ruled that Colorado has a compelling interest in discriminating against some religious colleges. If Colorado had chosen to exclude all religious colleges from the program, the Larson issue would go away and we would have to decide how Locke v. Davey Lukumi and the FEC applies to a much different free exercise issue. But Colorado has chosen to include some religious colleges and to exclude others from participation in the program, and that violates the clearest command of the EC under Larson. Colorado's interest in complying with its own, very different, anti-establishment concerns under state law do not justify its violation of the core principle of the EC under the US Constitution.I think CCU should win this case under Locke Lukumi and the FEC, but I am certain it should win this case under Larson... if Larson is still the law of the land. Rick [EMAIL PROTECTED] wrote: OK, I've now read the whole opinion, and I think the court's judgment is plainly correct under governing doctrine. The crucial point is that CCU's education necessarily invovles inculcation of religious truths and spiritual transformation. A substantial portion of the 'secular' instruction its students receive is inextricably entwined with religious indoctrination. CCU stipulates that its President 'informs incoming freshmen that Everything you learn at CCU will be framed within the Christian worldview, integrating your faith and your learning.”' ¶ 16. In an alumni publication, the President wrote that 'Education at CCU . . . is simply more than
Re: Colorado Christian University Case: EC Compelling Interest
OK, I've now read the whole opinion, and I think the court's judgment is plainly correct under governing doctrine. The crucial point is that CCU's education necessarily invovles inculcation of religious truths and spiritual transformation. A substantial portion of the 'secular' instruction its students receive is inextricably entwined with religious indoctrination. CCU stipulates that its President 'informs incoming freshmen that Everything you learn at CCU will be framed within the Christian worldview, integrating your faith and your learning.' ¶ 16. In an alumni publication, the President wrote that 'Education at CCU . . . is simply more than students could hope to find in any secular setting, because [their] education here has been structured intentionally to foster their spiritual transformation.' ¶ 20. . . . CCU admits that it requires all of its undergraduate students to attend 25 of the 30 semiweekly chapel services each semester. ¶ 37. (The label of pervasively sectarian is basically being applied only as a proxy to make this simple point about the nature of the education, i.e., that it involves both instruction on religious truth and compelled religious rituals -- something that apparently is not disputed.) OK, so if Colorado funded this education, it would be funding prayer, religious inculcation, and spiritual transformation. What follows? 1. If any of the aid programs in question is a direct aid program, or a program in which the school rather than the student applies for the aid -- something that is not clear from the bare-bones listing of the aid programs in footnote 3 -- then such state funding of religious education would violate the *federal* Constitution, per Mitchell v. Helms and countless other cases. 2. If, on the other hand, all five of the programs are a type of Zelman-like indirect aid to students, Colorado *could* fund the CCU religious inculcation (per Zelman), but need not do so (per Locke). Now, of course the new Court might very well overrule the entire Mitchell line of cases *and* Locke. But until it does so, this decision strikes me as compelled by the case law. -- Original message -- From: Rick Duncan [EMAIL PROTECTED] Doug Laycock writes: I don't know much about this case, but certainly as Rick describes it, it is just the state disagreeing with the federal rule on denominational discrimination. Doug and others, the CCU case is a very interesting and (I think) very important case making its way up the system. Here is a link to the district ct opinion which is currently being appealed. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Ready for the edge of your seat? Check out tonight's top picks on Yahoo! TV. ---BeginMessage--- Doug Laycock writes: I don't know much about this case, but certainly as Rick describes it, it is just the state disagreeing with the federal rule on denominational discrimination. Doug and others, the CCU case is a very interesting and (I think) very important case making its way up the system. Here is a link to the district ct opinion which is currently being appealed. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Ready for the edge of your seat? Check out tonight's top picks on Yahoo! TV. ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.---End Message--- ___ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages
Re: Colorado Christian University Case: EC Compelling Interest
Marty: I don't think Locke controls the much different Free Ex issue in this case, but setting aside Locke, Colorado has still engaged in denominational discrimination in a Zelman-like, true private choice scholarship program. Under the EC, it is not only permissible to include pervasivlely sectarian schools in a voucher program, it is forbidden under Larson to exclude some religious colleges while including others. There is no play in the joints issue here--the EC forbids discrimination among religions. The district ct correctly recognized the Larson denominational discrimination violation, but incorrectly ruled that Colorado has a compelling interest in discriminating against some religious colleges. If Colorado had chosen to exclude all religious colleges from the program, the Larson issue would go away and we would have to decide how Locke v. Davey Lukumi and the FEC applies to a much different free exercise issue. But Colorado has chosen to include some religious colleges and to exclude others from participation in the program, and that violates the clearest command of the EC under Larson. Colorado's interest in complying with its own, very different, anti-establishment concerns under state law do not justify its violation of the core principle of the EC under the US Constitution. I think CCU should win this case under Locke Lukumi and the FEC, but I am certain it should win this case under Larson... if Larson is still the law of the land. Rick [EMAIL PROTECTED] wrote: OK, I've now read the whole opinion, and I think the court's judgment is plainly correct under governing doctrine. The crucial point is that CCU's education necessarily invovles inculcation of religious truths and spiritual transformation. A substantial portion of the 'secular' instruction its students receive is inextricably entwined with religious indoctrination. CCU stipulates that its President 'informs incoming freshmen that Everything you learn at CCU will be framed within the Christian worldview, integrating your faith and your learning.' ¶ 16. In an alumni publication, the President wrote that 'Education at CCU . . . is simply more than students could hope to find in any secular setting, because [their] education here has been structured intentionally to foster their spiritual transformation.' ¶ 20. . . . CCU admits that it requires all of its undergraduate students to attend 25 of the 30 semiweekly chapel services each semester. ¶ 37. (The label of pervasively sectarian is basically being applied only as a proxy to make this simple point about the nature of the education, i.e., that it involves both instruction on religious truth and compelled religious rituals -- something that apparently is not disputed.) OK, so if Colorado funded this education, it would be funding prayer, religious inculcation, and spiritual transformation. What follows? 1. If any of the aid programs in question is a direct aid program, or a program in which the school rather than the student applies for the aid -- something that is not clear from the bare-bones listing of the aid programs in footnote 3 -- then such state funding of religious education would violate the *federal* Constitution, per Mitchell v. Helms and countless other cases. 2. If, on the other hand, all five of the programs are a type of Zelman-like indirect aid to students, Colorado *could* fund the CCU religious inculcation (per Zelman), but need not do so (per Locke). Now, of course the new Court might very well overrule the entire Mitchell line of cases *and* Locke. But until it does so, this decision strikes me as compelled by the case law. -- Original message -- From: Rick Duncan Doug Laycock writes: I don't know much about this case, but certainly as Rick describes it, it is just the state disagreeing with the federal rule on denominational discrimination. Doug and others, the CCU case is a very interesting and (I think) very important case making its way up the system. Here is a link to the district ct opinion which is currently being appealed. Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence. --J. Budziszewski (The Revenge of Conscience) Once again the ancient maxim is vindicated, that the perversion of the best is the worst. -- Id. - Ready for the edge of your seat? Check out tonight's top picks on Yahoo! TV. From: Rick Duncan [EMAIL PROTECTED] To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RColorado Christian University Case: EC Compelling Interest Date: Tue, 24 Jul 2007 15:16:44 + Doug Laycock writes: I
Re: Colorado Christian University Case: EC Compelling Interest
Rick, with all respect, I think you're simply ignoring the rationale of the Colorado statute and constitution. Yes, Colorado permits *some* religiously affiliated colleges to participate in the programs -- it allows, e.g., aid to Regis University and the Univ. of Denver -- because *some of those religious colleges permit their students to obtain a wholly secular education.* The aid to Regis and Denver, that is to say, does not necessarily support religious inculcation and spiritual transformation. Indeed, to the extent those schools do engage in such activities, the state aid may *not* subsidize such activities, under both the Federal and State Constitutions. At CCU, by contrast, virtually all education is religious in nature, and every student must participate in religious services, and thus state aid would *invariably* subsidize religious inculcation, which is unconstitutional. That's why CCU is categorically excluded -- and why it's distinguishable from Regis and Denver. This simply isn't a case of denominational discrimination. The state aid cannot be used for any religious teaching or services, full stop -- of *any* denomination, and at any school, whether it be CCU or Regis or Denver or the Univ. of Colorado. (Indeed, I assume it also cannot be used to teach the propriety or virtue of atheism, either.) -- Original message -- From: Rick Duncan [EMAIL PROTECTED] Marty: I don't think Locke controls the much different Free Ex issue in this case, but setting aside Locke, Colorado has still engaged in denominational discrimination in a Zelman-like, true private choice scholarship program. Under the EC, it is not only permissible to include pervasivlely sectarian schools in a voucher program, it is forbidden under Larson to exclude some religious colleges while including others. There is no play in the joints issue here--the EC forbids discrimination among religions. The district ct correctly recognized the Larson denominational discrimination violation, but incorrectly ruled that Colorado has a compelling interest in discriminating against some religious colleges. If Colorado had chosen to exclude all religious colleges from the program, the Larson issue would go away and we would have to decide how Locke v. Davey Lukumi and the FEC applies to a much different free exercise issue. But Colorado has chosen to include some religious colleges and to exclude others from participation in the program, and that violates the clearest command of the EC under Larson. Colorado's interest in complying with its own, very different, anti-establishment concerns under state law do not justify its violation of the core principle of the EC under the US Constitution. I think CCU should win this case under Locke Lukumi and the FEC, but I am certain it should win this case under Larson... if Larson is still the law of the land. Rick [EMAIL PROTECTED] wrote: OK, I've now read the whole opinion, and I think the court's judgment is plainly correct under governing doctrine. The crucial point is that CCU's education necessarily invovles inculcation of religious truths and spiritual transformation. A substantial portion of the 'secular' instruction its students receive is inextricably entwined with religious indoctrination. CCU stipulates that its President 'informs incoming freshmen that Everything you learn at CCU will be framed within the Christian worldview, integrating your faith and your learning.' ¶ 16. In an alumni publication, the President wrote that 'Education at CCU . . . is simply more than students could hope to find in any secular setting, because [their] education here has been structured intentionally to foster their spiritual transformation.' ¶ 20. . . . CCU admits that it requires all of its undergraduate students to attend 25 of the 30 semiweekly chapel services each semester. ¶ 37. (The label of pervasively sectarian is basically being applied only as a proxy to make this simple point about the nature of the education, i.e., that it involves both instruction on religious truth and compelled religious rituals -- something that apparently is not disputed.) OK, so if Colorado funded this education, it would be funding prayer, religious inculcation, and spiritual transformation. What follows? 1. If any of the aid programs in question is a direct aid program, or a program in which the school rather than the student applies for the aid -- something that is not clear from the bare-bones listing of the aid programs in footnote 3 -- then such state funding of religious education would violate the *federal* Constitution, per Mitchell v. Helms and countless other cases. 2. If, on the other hand, all five of the programs are a type of Zelman-like indirect aid to students, Colorado *could* fund
Re: Colorado Christian University Case: EC Compelling Interest
Fn.23 of /Larson/ seems to distinguish disparate impact from deliberate gerrymandering. The footnote is nearly a page long but the heart of it is this: The statute is not simply a facially neutral statute, the provisions of which happen to have a 'disparate impact' upon different religious organizations. On the contrary, [the section] makes explicit and deliberate distinctions between different religious organizations. Of course most distinctions are deliberate, but in the context of the facts and the rest of the opinion, I thake this to mean distinctions deliberately intended to eliminate the Unification Church and groups that were similar to it in the view of the legislature. Quoting [EMAIL PROTECTED]: Rick, with all respect, I think you're simply ignoring the rationale of the Colorado statute and constitution. Yes, Colorado permits *some* religiously affiliated colleges to participate in the programs -- it allows, e.g., aid to Regis University and the Univ. of Denver -- because *some of those religious colleges permit their students to obtain a wholly secular education.* The aid to Regis and Denver, that is to say, does not necessarily support religious inculcation and spiritual transformation. Indeed, to the extent those schools do engage in such activities, the state aid may *not* subsidize such activities, under both the Federal and State Constitutions. At CCU, by contrast, virtually all education is religious in nature, and every student must participate in religious services, and thus state aid would *invariably* subsidize religious inculcation, which is unconstitutional. That's why CCU is categorically excluded -- and why it's distinguishable from Regis and Denver. This simply isn't a case of denominational discrimination. The state aid cannot be used for any religious teaching or services, full stop -- of *any* denomination, and at any school, whether it be CCU or Regis or Denver or the Univ. of Colorado. (Indeed, I assume it also cannot be used to teach the propriety or virtue of atheism, either.) -- Original message -- From: Rick Duncan [EMAIL PROTECTED] Marty: I don't think Locke controls the much different Free Ex issue in this case, but setting aside Locke, Colorado has still engaged in denominational discrimination in a Zelman-like, true private choice scholarship program. Under the EC, it is not only permissible to include pervasivlely sectarian schools in a voucher program, it is forbidden under Larson to exclude some religious colleges while including others. There is no play in the joints issue here--the EC forbids discrimination among religions. The district ct correctly recognized the Larson denominational discrimination violation, but incorrectly ruled that Colorado has a compelling interest in discriminating against some religious colleges. If Colorado had chosen to exclude all religious colleges from the program, the Larson issue would go away and we would have to decide how Locke v. Davey Lukumi and the FEC applies to a much different free exercise issue. But Colorado has chosen to include some religious colleges and to exclude others from participation in the program, and that violates the clearest command of the EC under Larson. Colorado's interest in complying with its own, very different, anti-establishment concerns under state law do not justify its violation of the core principle of the EC under the US Constitution. I think CCU should win this case under Locke Lukumi and the FEC, but I am certain it should win this case under Larson... if Larson is still the law of the land. Rick [EMAIL PROTECTED] wrote: OK, I've now read the whole opinion, and I think the court's judgment is plainly correct under governing doctrine. The crucial point is that CCU's education necessarily invovles inculcation of religious truths and spiritual transformation. A substantial portion of the 'secular' instruction its students receive is inextricably entwined with religious indoctrination. CCU stipulates that its President 'informs incoming freshmen that Everything you learn at CCU will be framed within the Christian worldview, integrating your faith and your learning.' ¶ 16. In an alumni publication, the President wrote that 'Education at CCU . . . is simply more than students could hope to find in any secular setting, because [their] education here has been structured intentionally to foster their spiritual transformation.' ¶ 20. . . . CCU admits that it requires all of its undergraduate students to attend 25 of the 30 semiweekly chapel services each semester. ¶ 37. (The label of pervasively sectarian is basically being applied only as a proxy to make this simple point about the nature of the education, i.e., that it involves both instruction on religious truth and compelled religious rituals -- something that apparently is not disputed.)
