Locke v. Davey Question
This is a factual question about Washington's denial of Promise Scholarship funding to students, like Josh Davey, who are pursuing a degree in "devotional theology."Does anyone know whether Promise Scholars at Catholic universities in Washington are denied funding if they major in theology or religious studies? In other words, if a school like Notre Dame were located in Washington, would its theology students be disqualified from the Promise Scholarship Program because theology is taught from a "devotional" perspective? Or is their approach sufficiently "objective" to escape exclusion as "devotional?"What about a school like Yale and it's Divinity studies program? Eligible for funding because not "devotional?"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 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.
RE: Locke v. Davey Question
To particularize the question, what do they do with Gonzaga? Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick DuncanSent: Wednesday, January 11, 2006 9:51 AMTo: Law Religion issues for Law AcademicsSubject: Locke v. Davey Question This is a factual question about Washington's denial of Promise Scholarship funding to students, like Josh Davey, who are pursuing a degree in "devotional theology." Does anyone know whether Promise Scholars at Catholic universities in Washington are denied funding if they major in theology or religious studies? In other words, if a school like Notre Dame were located in Washington, would its theology students be disqualified from the Promise Scholarship Program because theology is taught from a "devotional" perspective? Or is their approach sufficiently "objective" to escape exclusion as "devotional?" What about a school like Yale and it's Divinity studies program? Eligible for funding because not "devotional?" 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! PhotosRing 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.
RE: Locke v. Davey Question
In the amicus brief that Doug Laycock, Greg Baylor, and I filed in Davey, we argued that this kind of determination (whats objective enough and whats too devotional) would entangle the state in discretionary, theologically sensitive questions and constituted another strike against the Washington exclusion (in addition to its being discriminatory and an unconstitutional condition). We didnt know then what the state did with Gonzaga we used out-of-state examples of schools whose theology departmental statements of purpose combine a significant faith orientation with a degree of historical/critical study and I still dont know. --- Thomas C. Berg Professor of Law Co-Director, Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy University of St. Thomas School of Law MSL 400 -- 1000 La Salle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax:(651) 962-4996 E-mail: [EMAIL PROTECTED] --- -Original Message- From: Douglas Laycock [mailto:[EMAIL PROTECTED] Sent: Wednesday, January 11, 2006 9:59 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey Question To particularize the question, what do they do with Gonzaga? Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan Sent: Wednesday, January 11, 2006 9:51 AM To: Law Religion issues for Law Academics Subject: Locke v. Davey Question This is a factual question about Washington's denial of Promise Scholarship funding to students, like Josh Davey, who are pursuing a degree in devotional theology. Does anyone know whether Promise Scholars at Catholic universities in Washington are denied funding if they major in theology or religious studies? In other words, if a school like Notre Dame were located in Washington, would its theology students be disqualified from the Promise Scholarship Program because theology is taught from a devotional perspective? Or is their approach sufficiently objective to escape exclusion as devotional? What about a school like Yale and it's Divinity studies program? Eligible for funding because not devotional? 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 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.
RE: Locke v. Davey Question
Tom raises a good point. It reminds me of a question I had about Scalias opinion in McCreary. How does a court decide whether a religion (or a religious display or message) is sufficiently monotheistic to permit the state to symbolically endorse it. Is this to be treated as a question of fact? Do we defer to the states judgment? And if so, is there a legal component to this analysis that sets parameters on the states discretion? Would this have to a faith that the framers would have recognized as monotheistic? And, of course, there is the question of what constitutes a sufficiently nonsectarian message or display to satisfy Scalias standard. These seem to me to be discretionary. theologically sensitive questions. Alan Brownstein From: [EMAIL PROTECTED].ucla.edu [mailto:[EMAIL PROTECTED].ucla.edu] On Behalf Of Berg, Thomas C. Sent: Wednesday, January 11, 2006 9:20 AM To: 'Law Religion issues for Law Academics' Subject: RE: Locke v. Davey Question In the amicus brief that Doug Laycock, Greg Baylor, and I filed in Davey, we argued that this kind of determination (whats objective enough and whats too devotional) would entangle the state in discretionary, theologically sensitive questions and constituted another strike against the Washington exclusion (in addition to its being discriminatory and an unconstitutional condition). We didnt know then what the state did with Gonzaga we used out-of-state examples of schools whose theology departmental statements of purpose combine a significant faith orientation with a degree of historical/critical study and I still dont know. --- Thomas C. Berg Professor of Law Co-Director, Terrence J. Murphy Institute for Catholic Thought, Law, and Public Policy University of St. Thomas School of Law MSL 400 -- 1000 La Salle Avenue Minneapolis, MN 55403-2015 Phone: (651) 962-4918 Fax:(651) 962-4996 E-mail: [EMAIL PROTECTED] --- -Original Message- From: Douglas Laycock [mailto:[EMAIL PROTECTED].utexas.edu] Sent: Wednesday, January 11, 2006 9:59 AM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey Question To particularize the question, what do they do with Gonzaga? Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED].ucla.edu [mailto:[EMAIL PROTECTED].ucla.edu] On Behalf Of Rick Duncan Sent: Wednesday, January 11, 2006 9:51 AM To: Law Religion issues for Law Academics Subject: Locke v. Davey Question This is a factual question about Washington's denial of Promise Scholarship funding to students, like Josh Davey, who are pursuing a degree in devotional theology. Does anyone know whether Promise Scholars at Catholic universities in Washington are denied funding if they major in theology or religious studies? In other words, if a school like Notre Dame were located in Washington, would its theology students be disqualified from the Promise Scholarship Program because theology is taught from a devotional perspective? Or is their approach sufficiently objective to escape exclusion as devotional? What about a school like Yale and it's Divinity studies program? Eligible for funding because not devotional? 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 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.
Re: Locke v. Davey Question
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 proxy for implementing its state constitutional prohibition on the use of public funds for religious instruction. But thebasic state constitutional distinction -- money can beusedfor 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 that 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 that resembles worship and manifests a devotion to religion and religious principles in thought, feeling, belief, andconduct." Thus, for example, the brief in Davey explained thatpublic 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 scholarship 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 religious 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 religion, 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 programwas "designed to prepare students for vocational ministry as a pastor in the local church," and the "core courses 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,
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 theology 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 Protestantclergyman 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 DuncanMarty 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 proxy for implementing its state constitutional prohibition on the use of public funds for religious instruction. But thebasic state constitutional distinction -- money can beusedfor 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 that 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, andconduct." Thus, for example, the brief in Davey explained thatpublic 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 scholarship 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
Re: Locke v. Davey Question
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.Washingtonprohibited 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 DuncanMarty 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 - From: Rick Duncan To: Law Religion issues for Law Academics Sent: Wednesday, January 11, 2006 2:25 PM Subject: Re: Locke v. Davey QuestionMarty'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 Protestantclergyman 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 DuncanMarty 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 thebasic state constitutional distinction -- money can beusedfor 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, andconduct." Thus, for example, the brief in Davey explained thatpublic colleges and universities in Washington "teach about religion, but do not provide instruction to inculcate belief or disbelief in the doctrine of a
Encyclopedia entry on Intelligent Design
The Encyclopedia of Civil Liberties, which will be published by Routledge in 2006, is looking for someone to quickly write an entry on Intelligent Design. It would include a discussion of the recent case in Pa. and the way intelligent design impacts civil liberties and the establishment clause. The length is quite openended. It could be relatively short -- 1,000 words or three times that much if you need it. There is a modest honarium. We would need it within the next week. I hope there is someone willing to take this one. Please feel free to contact me directly, Paul Finkelman [EMAIL PROTECTED] or Jamie Ehrlich, the project manager at Civil Liberties [EMAIL PROTECTED] -- Paul Finkelman Chapman Distinguished Professor of Law University of Tulsa College of Law 3120 East 4th Place Tulsa, OK 74105 918-631-3706 (voice) 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.
Re: Locke v. Davey Question
Well, I think I see where the confusion lies. Rehnquist does indeed write the opinion as though Washington's interest were, in your words, to "protect citizens from being taxed to train the education of religious ministers." But that's not, in fact, Washington's interest. Washington did not simply assert an interest in preventing funds from being used to education prospective ministers, as such. If someone wishing to be a minister takes a bunch of secular courses in order to do so and majors in comparative religion, she can use the scholarship. See this, from the state's opening brief: "Davey's case would be a different one, and the one the Ninth Circuit found, if the statute stated: 'No aid shall be awarded to any person who ever plans to become a minister.' The statute, however, places no such condition on the recipient; it restricts only the type of instruction that the state financial aid programs will underwrite." Indeed, the statutory ban not only does not reach all prospective ministers,it's not limited to prospective clergy, either -- it extends to any person pursuing a degree in theology, even if it's her intent to be a biologist with a theology degree. As Washington put it inits reply brief: "Davey also argues that Wash. Rev. Code § 28B.10.814 is overinclusive because it would apply to individuals who seek a degree in theology but never intend to pursue a career in the ministry. Resp't Br. 31. This argument ignores the fact that the use of public funds for religious instruction itself is objectionable." As these quotations indicate, Washington's ultimate aim is to prevent the use of public funds for religious worship and education. That is what its Constitution requires. Thus, for example, the same constitutional provision at issue here also (and more famously) prohibits religious education in public schools, even though obviously the purpose of public education is not to train all public school students to be clergy. See pages 3-6 of the State's brief. OK, but if preventing funds from being used to subsidize religious education is the state's aim, then Rick is right to ask why the statute is underinclusive, in that it appears to allow non-theology-majors to use funds for religious classes. Rick is right that the scholarship statute, standing alone (and the 1969 statute on which it's based), prohibits the use of scholarships only to pursue a theology degree, and does not prohibit the use of the scholarship by non-theology majors, even if they enroll in religious classes. The reason for this is that the statute does not go as far as the state constitution requires. It merely addresses a clear subset of cases that implicate the constitutional proscription. The legislature presumably figured that anyone studying for a theology degree would invariably (or almost certainly) take many religious classes, and it therefore carved out a bright-line rule for such majors. But the statute is not the end of the story. It's probably the case that the state must prohibit scholarships from being usedfor religious classes, as well, even by non-theology majors. See State v. Grimm, 48 P.3d at 285-286 (indicating that, pursuant to the state constitution,education grants must be made contingenton the student not enrolling in any program that includes religious worship, exercise, or instruction). To be sure, the holding of the Rehnquist opinion is nominally limited to cases, such as Davey's, in which the education is being used to train prospective clergy. I have serious doubts thatthe holding will be cabined to "clergy training" cases in the future; but even if it is, it remains the case that Washington law is aimed more broadly at prohibiting the use of any public funds for religious education, no matter what the student's ultimate profession might be. - Original Message - From: Rick Duncan To: Law Religion issues for Law Academics Sent: Wednesday, January 11, 2006 3:59 PM Subject: Re: Locke v. Davey Question 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. Washingtonprohibited 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
RE: Locke v. Davey Question
This is a statute that was written for convenient administration; it is much easier (and less entangling) to evaluate a major than to evaluate every course. But the cost of convenience was very high. Theology majors forfeit the scholarship for their secular courses, including not just a second major like Davey'sbut alsoall their general education requirements and all their secular electives. It was a transparent fiction to say there was no penalty on the choice of major because he could take his secular courses at a different school. Drafting the statute for convenience also means that students majoring in anything other than theology can take lots of theology electives. And it apparently means that students can simply not declare a major, or declare some other major, take all the theology requirements, and change their major to theology late in their college career, maybe even after they have exhaustedtheir Promise Scholarship, certainly after they have collected most of it. In terms of the interest Marty identifies -- not subsidizing religious instruction -- the statutory fit is exceedingly poor. In terms of the interest Rehnquist identifies -- at one point he says the interest in not subsidizing the training of clergy is the only interest at stake (his emphasis) -- the fit is quite imperfect but at least plausible. Probably the biggest question about Lockev. Daveyis whether it will be confined to the training of clergy, or expanded to all religious instruction, or expanded to hospitals and soup kitchens with religious affiliations.Rehnquist's clergy-only rationale suggests clergy only; his no-burden rationale suggests hospitals and everything else. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Wednesday, January 11, 2006 4:02 PMTo: Law Religion issues for Law AcademicsSubject: Re: Locke v. Davey Question Well, I think I see where the confusion lies. Rehnquist does indeed write the opinion as though Washington's interest were, in your words, to "protect citizens from being taxed to train the education of religious ministers." But that's not, in fact, Washington's interest.. . . As Washington put it inits reply brief: "Davey also argues that Wash. Rev. Code § 28B.10.814 is overinclusive because it would apply to individuals who seek a degree in theology but never intend to pursue a career in the ministry. Resp't Br. 31. This argument ignores the fact that the use of public funds for religious instruction itself is objectionable." ___ 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 Question
I agree 100% with Doug's first paragraph-- the program comes perilously close to being an unconstitutional condition because the exclusion is not at all tailored to the religious courses, and thus Davey is put to the ridiculous choice of not majoring in theology or simultaneously studying at two undergraduate institutions if he wishes to use the scholarship for his secular courses. In footnote 4 of Davey, "bitter-with-the-sweet"Rehnquistblows this off as if it were no big deal, but I disagree. See notes 13 and 14 of http://www.scotusblog.com/movabletype/archives/Cutter.Senators.Final.pdf(citing Doug). But Itake issue with Doug's second paragraph. As I tried to explain in my last post, even though the statute doesn't speak to it, under the Washington Constitution, Promise Scholarships cannot be used by students to take theology classes involving religious instruction. - Original Message - From: Douglas Laycock To: Law Religion issues for Law Academics Sent: Wednesday, January 11, 2006 5:25 PM Subject: RE: Locke v. Davey Question This is a statute that was written for convenient administration; it is much easier (and less entangling) to evaluate a major than to evaluate every course. But the cost of convenience was very high. Theology majors forfeit the scholarship for their secular courses, including not just a second major like Davey'sbut alsoall their general education requirements and all their secular electives. It was a transparent fiction to say there was no penalty on the choice of major because he could take his secular courses at a different school. Drafting the statute for convenience also means that students majoring in anything other than theology can take lots of theology electives. And it apparently means that students can simply not declare a major, or declare some other major, take all the theology requirements, and change their major to theology late in their college career, maybe even after they have exhaustedtheir Promise Scholarship, certainly after they have collected most of it. In terms of the interest Marty identifies -- not subsidizing religious instruction -- the statutory fit is exceedingly poor. In terms of the interest Rehnquist identifies -- at one point he says the interest in not subsidizing the training of clergy is the only interest at stake (his emphasis) -- the fit is quite imperfect but at least plausible. Probably the biggest question about Lockev. Daveyis whether it will be confined to the training of clergy, or expanded to all religious instruction, or expanded to hospitals and soup kitchens with religious affiliations.Rehnquist's clergy-only rationale suggests clergy only; his no-burden rationale suggests hospitals and everything else. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Wednesday, January 11, 2006 4:02 PMTo: Law Religion issues for Law AcademicsSubject: Re: Locke v. Davey Question Well, I think I see where the confusion lies. Rehnquist does indeed write the opinion as though Washington's interest were, in your words, to "protect citizens from being taxed to train the education of religious ministers." But that's not, in fact, Washington's interest.. . . As Washington put it inits reply brief: "Davey also argues that Wash. Rev. Code § 28B.10.814 is overinclusive because it would apply to individuals who seek a degree in theology but never intend to pursue a career in the ministry. Resp't Br. 31. This argument ignores the fact that the use of public funds for religious instruction itself is objectionable." ___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 Question
For what it's worth in this conversation, the Supreme Court's opinion in Locke includes this: Once the student enrolls at an eligible institution, the institution must certify . . . that the student is not pursuing a degree in devotional theology. The institution, rather than the State, determines whether the student's major is devotional. That doesn't solve the problems of under-inclusion, but it does solve the entanglement problem that Rick seemed to be worried about , doesn't it? On 11 Jan 2006 at 17:02, Marty Lederman wrote: Well, I think I see where the confusion lies. Rehnquist does indeed write the opinion as though Washington's interest were, in your words, to protect citizens from being taxed to train the education of religious ministers. But that's not, in fact, Washington's interest. Washington did not simply assert an interest in preventing funds from being used to education prospective ministers, as such. If someone wishing to be a minister takes a bunch of secular courses in order to do so and majors in comparative religion, she can use the scholarship. See this, from the state's opening brief: Davey's case would be a different one, and the one the Ninth Circuit found, if the statute stated: 'No aid shall be awarded to any person who ever plans to become a minister.' The statute, however, places no such condition on the recipient; it restricts only the type of instruction that the state financial aid programs will underwrite. Indeed, the statutory ban not only does not reach all prospective ministers,it's not limited to prospective clergy, either -- it extends to any person pursuing a degree in theology, even if it's her intent to be a biologist with a theology degree. As Washington put it inits reply brief: Davey also argues that Wash. Rev. Code § 28B.10.814 is overinclusive because it would apply to individuals who seek a degree in theology but never intend to pursue a career in the ministry. Resp't Br. 31. This argument ignores the fact that the use of public funds for religious instruction itself is objectionable. As these quotations indicate, Washington's ultimate aim is to prevent the use of public funds for religious worship and education. That is what its Constitution requires. Thus, for example, the same constitutional provision at issue here also (and more famously) prohibits religious education in public schools, even though obviously the purpose of public education is not to train all public school students to be clergy. See pages 3-6 of the State's brief. OK, but if preventing funds from being used to subsidize religious education is the state's aim, then Rick is right to ask why the statute is underinclusive, in that it appears to allow non-theology- majors to use funds for religious classes. Rick is right that the scholarship statute, standing alone (and the 1969 statute on which it's based), prohibits the use of scholarships only to pursue a theology degree, and does not prohibit the use of the scholarship by non-theology majors, even if they enroll in religious classes. The reason for this is that the statute does not go as far as the state constitution requires. It merely addresses a clear subset of cases that implicate the constitutional proscription. The legislature presumably figured that anyone studying for a theology degree would invariably (or almost certainly) take many religious classes, and it therefore carved out a bright-line rule for such majors. But the statute is not the end of the story. It's probably the case that the state must prohibit scholarships from being usedfor religious classes, as well, even by non-theology majors. See State v. Grimm, 48 P.3d at 285-286 (indicating that, pursuant to the state constitution,education grants must be made contingenton the student not enrolling in any program that includes religious worship, exercise, or instruction). To be sure, the holding of the Rehnquist opinion is nominally limited to cases, such as Davey's, in which the education is being used to train prospective clergy. I have serious doubts thatthe holding will be cabined to clergy training cases in the future; but even if it is, it remains the case that Washington law is aimed more broadly at prohibiting the use of any public funds for religious education, no matter what the student's ultimate profession might be. - Original Message - From: Rick Duncan To: Law Religion issues for Law Academics Sent: Wednesday, January 11, 2006 3:59 PM Subject: Re: Locke v. Davey Question 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. Washingtonprohibited the funding of persons pursuing a degree in devotional study, not the funding of persons taking courses (even many courses)
RE: Locke v. Davey Question
Marty may be right about the Washington constitution. But the statute seems to enact a bright-line rule that was far more visible. I obviously have not done any empirical investigation, but my sense from the record and the briefs in Davey was the state was notpreventing students in secular majors from taking theology courses with their scholarships. A financial aid counselor testified that he counseled kids not to declare other majors in order to get the scholarship if their real goal was to become a pastor. So the school seems to have been focused on the clergy-only rationale.The fact that this issue arose suggests that the device of declaring another major would have worked -- that the state was not interfering. But perhaps this testimony also implies that the school was worried about what the state's response might be if this sort of maneuver became commonly used and widely known. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Wednesday, January 11, 2006 4:38 PMTo: Law Religion issues for Law AcademicsSubject: Re: Locke v. Davey Question I agree 100% with Doug's first paragraph-- the program comes perilously close to being an unconstitutional condition because the exclusion is not at all tailored to the religious courses, and thus Davey is put to the ridiculous choice of not majoring in theology or simultaneously studying at two undergraduate institutions if he wishes to use the scholarship for his secular courses. In footnote 4 of Davey, "bitter-with-the-sweet"Rehnquistblows this off as if it were no big deal, but I disagree. See notes 13 and 14 of http://www.scotusblog.com/movabletype/archives/Cutter.Senators.Final.pdf(citing Doug). But Itake issue with Doug's second paragraph. As I tried to explain in my last post, even though the statute doesn't speak to it, under the Washington Constitution, Promise Scholarships cannot be used by students to take theology classes involving religious instruction. - Original Message - From: Douglas Laycock To: Law Religion issues for Law Academics Sent: Wednesday, January 11, 2006 5:25 PM Subject: RE: Locke v. Davey Question This is a statute that was written for convenient administration; it is much easier (and less entangling) to evaluate a major than to evaluate every course. But the cost of convenience was very high. Theology majors forfeit the scholarship for their secular courses, including not just a second major like Davey'sbut alsoall their general education requirements and all their secular electives. It was a transparent fiction to say there was no penalty on the choice of major because he could take his secular courses at a different school. Drafting the statute for convenience also means that students majoring in anything other than theology can take lots of theology electives. And it apparently means that students can simply not declare a major, or declare some other major, take all the theology requirements, and change their major to theology late in their college career, maybe even after they have exhaustedtheir Promise Scholarship, certainly after they have collected most of it. In terms of the interest Marty identifies -- not subsidizing religious instruction -- the statutory fit is exceedingly poor. In terms of the interest Rehnquist identifies -- at one point he says the interest in not subsidizing the training of clergy is the only interest at stake (his emphasis) -- the fit is quite imperfect but at least plausible. Probably the biggest question about Lockev. Daveyis whether it will be confined to the training of clergy, or expanded to all religious instruction, or expanded to hospitals and soup kitchens with religious affiliations.Rehnquist's clergy-only rationale suggests clergy only; his no-burden rationale suggests hospitals and everything else. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty LedermanSent: Wednesday, January 11, 2006 4:02 PMTo: Law Religion issues for Law AcademicsSubject: Re: Locke v. Davey Question Well, I think I see where the confusion lies. Rehnquist does indeed write the opinion as though Washington's interest were, in your words, to "protect citizens from being taxed to train the education of religious ministers." But that's not, in fact, Washington's interest.. . . As Washington put it inits reply brief: "Davey also argues that Wash. Rev. Code § 28B.10.814 is overinclusive because it would apply to individuals who seek a degree in theology but never intend
RE: Locke v. Davey Question
How close a fit is necessary? Practicalities count for something even in constitutional law ,and the fact that this rule is less entangling than alternatives-ie inquiry into each course or a students career plans-as if most college students have such plans till the last minutealso ought to count for something. And while it is common ground that Washington did not need to enforce a no theology major rule as a matter of federal constitutional law , the question is may it have such a rule as a matter of state constitutional law if there is no perfect way of enforcing it. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Wednesday, January 11, 2006 5:59 PM To: Law Religion issues for Law Academics Subject: RE: Locke v. Davey Question Marty may be right about the Washington constitution. But the statute seems to enact a bright-line rule that was far more visible. I obviously have not done any empirical investigation, but my sense from the record and the briefs in Davey was the state was notpreventing students in secular majors from taking theology courses with their scholarships. A financial aid counselor testified that he counseled kids not to declare other majors in order to get the scholarship if their real goal was to become a pastor. So the school seems to have been focused on the clergy-only rationale.The fact that this issue arose suggests that the device of declaring another major would have worked -- that the state was not interfering. But perhaps this testimony also implies that the school was worried about what the state's response might be if this sort of maneuver became commonly used and widely known. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marty Lederman Sent: Wednesday, January 11, 2006 4:38 PM To: Law Religion issues for Law Academics Subject: Re: Locke v. Davey Question I agree 100% with Doug's first paragraph-- the program comes perilously close to being an unconstitutional condition because the exclusion is not at all tailored to the religious courses, and thus Davey is put to the ridiculous choice of not majoring in theology or simultaneously studying at two undergraduate institutions if he wishes to use the scholarship for his secular courses. In footnote 4 of Davey, bitter-with-the-sweetRehnquistblows this off as if it were no big deal, but I disagree. See notes 13 and 14 of http://www.scotusblog.com/movabletype/archives/Cutter.Senators.Final.pdf(citing Doug). But Itake issue with Doug's second paragraph. As I tried to explain in my last post, even though the statute doesn't speak to it, under the Washington Constitution, Promise Scholarships cannot be used by students to take theology classes involving religious instruction. - Original Message - From: Douglas Laycock To: Law Religion issues for Law Academics Sent: Wednesday, January 11, 2006 5:25 PM Subject: RE: Locke v. Davey Question This is a statute that was written for convenient administration; it is much easier (and less entangling) to evaluate a major than to evaluate every course. But the cost of convenience was very high. Theology majors forfeit the scholarship for their secular courses, including not just a second major like Davey'sbut alsoall their general education requirements and all their secular electives. It was a transparent fiction to say there was no penalty on the choice of major because he could take his secular courses at a different school. Drafting the statute for convenience also means that students majoring in anything other than theology can take lots of theology electives. And it apparently means that students can simply not declare a major, or declare some other major, take all the theology requirements, and change their major to theology late in their college career, maybe even after they have exhaustedtheir Promise Scholarship, certainly after they have collected most of it. In terms of the interest Marty identifies -- not subsidizing religious instruction -- the statutory fit is exceedingly poor. In terms of the interest Rehnquist identifies -- at one point he says the interest in not subsidizing the training of clergy is the only interest at stake (his emphasis) -- the fit is quite imperfect but at least plausible. Probably the biggest question about Lockev. Daveyis whether it will be confined to the training of clergy, or expanded to all religious instruction, or expanded to hospitals and soup kitchens with religious affiliations.Rehnquist's clergy-only rationale suggests clergy only; his no-burden rationale suggests hospitals and everything else. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988
Did Jesus exist? Italian court to decide
Assuming there is anything to this story, it kind of makes me glad that the case-or-controversy requirement has some content. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) Did Jesus exist? Italian court to decide - Yahoo! News http://news.yahoo.com/s/nm/20060105/od_uk_nm/oukoe_uk_religion_court Yahoo! News http://news.yahoo.com/ ___ 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 Question
I would like to inject my situation in North Carolina into the picture. The North Carolina statute looks at the institution, not what the student is studying. Originally, "pervasively sectarian" institutions were prohibited from participating by court decree. Accounting majors at sectarian colleges were excluded, theology majors at non-sectarian schools were eligible. An old three-judge federal district courtconcluded without any real discussion that "everyone knew" that Duke was non-sectarian and ministerial students (which Duke does have) could receive the grant. Belmont Abbey, a Catholic college, however was sectarian, although it has a liberal arts program and its accounting, education, business, chemistry, etc students were ineligble. The law was then changed after a U.S.S.C. opinion dealing with another jurisdiction seemed to proclude the "prevasively sectarian" standard in a higher education context. The amended lawexcluded "seminaries, Bible colleges, and Bible institutes," which terms are not defined. It also excluded students "studying for the ministry." However, the grant is only available to undergraduate students and the colleges took the position that undergraduate Bible and religion majors were pre-seminary and by definition, no undergraduate was "studying for the ministry." The state said nothing, and in fact every private undergraduate college in the program awards the grants to Bible and religion majors, even if declared as ministerial students and has done so for over 30 years. Two colleges were excluded by the state. Roanoke Bible College because of its name andSoutheastern College at Wake Forest at which I then taught and directed the Social Studies Education program. SECWF is an undergraduate liberal arts college established by Southeastern Baptist Theological Seminary. Its corporate name is "Southeastern College at Wake Forest, a School of the Southeastern Baptist Theological Seminary" (I am not sure the lawyer should keep his license - a joke). The relation is like Harvard University and Harvard Divinity School or Harvard Law School, except the professional (seminary) school is the parent of the liberal arts program. SECWF is SACS and NCATE accredited and largely prepares public school teachers, as does Roanoke Bible College. The statute was passed before SECWF existed and no one had ever thought about it until I brought it up. Roanoke had failed inan earlierattempt to get the statute changed. After Davey was decided by the Ninth Circuit and cert granted, but before oral argument, I took this as a project. The other schools indicated they would fight adding the two excluded schools, ostensibly because of fear that the whole program would be declared unconstitutional, cynics said to avoid sharing the pie. To get around this road block, legislation was introduced creating a parallel program. It simply said any school which was not eligible for the other grant and then meets the following requirements which were copied word-for-word from the other statute except for the exlusion of seminaries, Bible colleges, and Bible institutes and students studying for the ministry would receive the alternative grant.[One of the requirements is SACS accreditation so a "Bible institute" in the basement of a local church is not an issue, it must have a fully accredited program.) I testified 4 times before the General Assembly and convinced them (with the help of letters from Professors Duncan, Rice, and Volokh whom I thank) that the N C. statute was unconstitutional, believing that the Ninth Circuit would be affirmed. This scared themembers of the General Assemblyenough that after 6 months of thrice weekly trips to the Legislative Building the bill was passed and signed by the Governor. Had Davey came down earlier it would have went the other way I think. I have not read Davey in about a year, but my memory is the thurst is that a state may elect not to subsidize the training of clegy without violating the Free Exercise Clause, but may choose to aid clerical students on the same basis as non-clerical students without violating the Establishment Clause. I understood the focus to have been on ministerial preparation and "devotional theology major" was used more or less interchangably with ministerial preparation. 1. Is not the North Carolina statute unconstitutional even under Davey since it excludes schools, presumably based on their legal name on the articles of incorporation, even if the school has no religious courses, academic or "devotional"? Could a "seminary" (a few schools still have this as their legal name since seminary was not limited to theological training in the 19th century but meant lower-division liberal arts and they still have a charter saying seminary although they have a DBA of college) be excluded even if it offered no courses in religion, devotonal or non-devotoinal. Can a Bible college's non-religious majors be excluded? 2. For all but a few very small denominations
