I think Locke is an excellent example of what happens when an underlying premise is played out to the point where its infirmities become glaring.
I think the real problem lies here: "Neutrality" under the religion clauses has come to mean the same kind of "neutrality" that is applied under freedom of speech and equal protection. If one carries this approach to its logical extension, then Locke looks wrong --maybe even is wrong. Or, the holding must be so minimized as to make the case a cipher. I think rejecting Locke as analytically flawed because it departs from doctrine that requires a horizontally consistent definition of neutrality really does make analytical sense under the current doctrine. Nevertheless, this leads to several practical and constitutional difficulties: 1. The "neutrality is neutrality is neutrality" approach ignores the ways in which religion really is different in kind, not just another idea or viewpoint or constituency. We already see the utter weirdness of acting like religion is "just another viewpoint" or insisting that words like "under God" are not religious if embedded in the context of a patriotic ritual --like a crèche surrounded by a and wishing well. 2. As Doug says, following this "logic" might lead to extreme results in terms of creating a much wider category of "mandatory funding" scenarios. (But again, it is indeed hard to square with other case law, now that the Establishment Clause has withered as a unique defense to non-funding of religious ends. In fact, without the old E.C. defense to excluding religion its exclusion actually becomes an E.C. problem because it is "hostile" to religion!) 3. If the Court carries this all forward, then it not only may require (versus allow, as in Zelman)funding of religion in all cases where "neutrality" would be thereby satisfied (per Rosenberger) but also might require that religious recipients be excused from important conditions on the funding (Dale). The new case on the Solomon Amendment comes immediately to mind. *State and federal fiscs being what they are --tight -- the implications may be profound. *Non-profit budgets are terribly tight as well --If folks will rush to fill classroom space for community activities, and they do, they certainly will learn the ropes of filling out applications for state and federal funds. It will be interesting to see what Justice Scalia in particular does with this last extension of Dale --i.e. you must give me the money without the conditions-- given his concern in Smith about minorities undermining democracy, and given his sense (prayer cases) that "compulsion" means far more than psycho-social coercion. It will also be interesting to see what a post-Rehnquist Court will do in the funding scenario, given his reluctance to view non-funding as coercive, discriminatory, or otherwise an undue burden. "Just refuse the money" has been his fairly consistent response to such claims. -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock Sent: Tuesday, May 03, 2005 10:07 AM To: Law & Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up As Tom Berg has effectively pointed out, the opinion in Davey is schizophrenic. It relies heavily on the state's interest in not funding the training of clergy; at one point, it says that is "the only interest" at issue. That suggests that the case is confined to the clergy and all other religious uses of government grants are outside its scope. But it also relies on the claim that there is no burden because the government is free to choose what it is willing to subsidize. That argument has almost infinite application, and as Eugene keeps repeating, nothing can be logically distinguished from it. Which argument is the holding? Well, in the first year of law school, the narrow clergy-only rationale is the holding. Those were the facts, and everything else is dicta. In the real world, there were seven votes for both halves of the opinion, and three of them would have to support any distinction to change the result. Four of the seven think it is broadly unconstitutional to let private citizens use government funds for religious purposes; they are not likely to join the first opinion distinguishing Davey. If that is right, then any distinction has to capture all three of Kennedy, O'Connor, and Rehnquist (or their replacements). I would be surprised if all three of them say the opinion is only about the clergy. Rehnquist of course has been pushing his idea that government can choose what it is willing to subsidize, and protect that choice with prophylactic rules, for more than two decades. The distinction when it finally comes may not be very logical. But if states push the envelope in the ways suggested by Eugene's hypotheticals, eventually the Court will shrink from what seem to be extreme results, and it will draw an illogical distinction if it can't think of a logical one. Douglas Laycock University of Texas Law School 727 E. Dean Keeton St. Austin, TX 78705 512-232-1341 (phone) 512-471-6988 (fax) -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Conkle, Daniel O. Sent: Tuesday, May 03, 2005 11:56 AM To: Law & Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up Needless to say, the precedential effect of Locke v. Davey is unclear--that's what makes the hypothetical interesting--but I believe that the holding can reasonably and properly be confined in the manner I have suggested. The Court emphasized that the burden on Davey was minimal, and it also emphasized that the state had distinctive antiestablishment concerns that were linked to historical disputes about state-funded clergy. Dan Conkle -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, May 03, 2005 11:22 AM To: Law & Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up I wonder: Would it indeed, given Locke, be unconstitutional for the state to bar all studies which in effect are focused on devotional theology, setting aside the major? (Imagine a cap on the number of such classes you could take.) It would surprise me if "major" became a constitutionally significant category. As to the state's antiestablishment being weaker, why? In both instances, the state is claiming an interest in keeping tax money from flowing, even as a result of private choice, to religious education (or, in Alan's modification, in which the state barred the religious donation or tithing of aid money, to churches). Why can't the state assert that its interest is identical, and identically strong, in both contexts? Eugene Dan Conkle writes: > As I read the opinion, Locke v. Davey applied a sort of balancing > test. As Mark notes, the Court found a strong and historically > recognized antiestablishment interest on the part of the state. At > the same time, the Court also found the free exercise burden, if any, > to be slight. The Court concluded that the state's disfavor of > religion was minimal and did not suggest hostility. The Court might > well find a greater burden--and perhaps increased evidence of > hostility--if a state were to bar welfare recipients from using their > benefits for religious instruction. Note that Davey could have kept > his scholarship and used it to study devotional theology, as long as > he did not declare that field as his major. > > If I'm right, the balance tips differently in Eugene's hypothetical > for each of two reasons: the state's antiestablishment interest is > weaker and the burden on free exercise is greater. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
