Bobby: Agreed!
I would note in this regard, however, that however the difficult cases
might be decided, even as eloquent a proponent of permissive accommdation as
Michael McConnell conceded (60 G.W. L. Rev. 685) that certain tangible "harms"
to third parties could render an exemption unconstitutional. For example,
as to Zorach itself, McConnell acknowledged that if there were a
"wasted hour" for the students left behind (as Chip Lupu had described his own
experience in the New York State schools), then the release-time
program would have been invalid: "Zorach is a difficult case
because the opinion does not provide sufficient information about the activities
in which the nonparticipating students were engaged. In my opinion, a released
time program of the sort Professor Lupu experienced as a child, in which the
nonparticipating students were inflicted with 'an entirely wasted hour of
school,' Lupu, supra note 6, at 744, would be unconstitutional." McConnell
went on to argue that the types of third-party harms that should "count" for
Religion Clause purposes are those that could induce the third parties to alter
their own (real or feigned) religious beliefs, conduct or affiliation. I'm
not sure I agree that the inqiury should be so limited; but that's one very
interesting perspective on your question.
FWIW, we had a somewhat interesting list-thread on the problem back on
February 16-20, dealing specifically with contemporary release-time
programs.
P.S. I would respectfully suggest that then-Professor McConnell erred
in suggesting that the opinion in Zorach itself "does not provide
sufficient information about the activities in which the nonparticipating
students were engaged" to enable us to determine whether the program was
unconstitutional. Right at the outset, the Court's opinion describes the
plaintiffs' complaint that "the classroom activities come to a halt while the
students who are released for religious instruction are on leave." 343
U.S. at 309. And Justice Jackson's dissent confirmed this
understanding: "Here schooling is more or less suspended during
the 'released time' so the nonreligious attendants will not forge ahead of the
churchgoing absentees. But it serves as a temporary jail for a
pupil who will not go to Church." Id. at 324. As Jackson reasonably
explained, it was exactly this "dead time" that had the effect of encouraging
students to attend church schools.
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