To the extent that the decision in Locke is
a product of general themes in Rehnquist’s constitutional jurisprudence,
I think the theme of states’ rights—mentioned earlier by Rick
Tepker—should not be overlooked. Rehnquist wrote a series of important
Establishment Clause opinions upholding indirect funding programs that included
religious beneficiaries (Mueller, Zobrest, Zelman), citing the importance of neutrality
and private choice. And yet he rejected the Free Exercise argument in Locke
even though the program at issue there was not neutral and did not honor the private
choice of those wishing to pursue religious careers. In each context,
however, Rehnquist was according discretion to the states by interpreting the First
Amendment narrowly. I analyze Rehnquist’s role in the indirect
funding cases--both the Establishment Clauses cases and Locke--in a book
chapter in The Rehnquist Legacy (Craig Bradley ed., Cambridge 2006).
Daniel O. Conkle
*******************************************
Daniel O. Conkle
Robert H. McKinney Professor of Law
Indiana University School of Law
Bloomington, Indiana 47405
(812) 855-4331
fax (812) 855-0555
e-mail [EMAIL PROTECTED]
*******************************************
-----Original Message-----
From:
[EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas Laycock
Sent: Sunday, October
01, 2006 2:29 PM
To: religionlaw@lists.ucla.edu
Subject: RE: Locke v. Davey
Analysis
Locke v. Davey does not
announce a requirement of anti-religious motive, as I show in a
sentence-by-sentence parsing of the opinion in the Harvard Law Review in
2004. It is primarily a burden opinion: refusal to fund does not
impose a significant burden, which was indeed a longstanding Rehnquist
theme. There is also talk about the importance and narrowness of the
state's interest in not funding clergy -- at one point he says the
"only" interest at issue here is the interest in not funding the
training of clergy -- and other talk that would seem to make the state's
interests irrelevant and universalize the rule that refusal to fund is not a
burden.
Sherbert is distinguished as a
burden opinion, not as a motive opinion. It is true that judges deciding
or defending Employment Division v. Smith
have characterized Sherbert
as a discrimination case. But that is not at all the same as finding bad
motive behind that discrimination. Locke
v. Davey itself was clearly a discrimination case, and yet the
Court found no bad motive. Rehnquist also distinguishes the case
striking down rules barring clergy from the legislature (Pate?), which were enacted in 1796; no
one has claimed that that was a motive case. Rehnquist takes up the
question of motive only in response to Scalia's dissent, and only after
distinguishing cases of burdensome regulation and of regulation that
intereferes with political rights.
Quoting Gary McCaleb <[EMAIL PROTECTED]>:
> I will weigh in but briefly--I'm spending my Saturday dealing with the
> Ninth Circuit's wayward First Amendment analyses on another case--but
> note this as background to Davey. I litigated the case at district
> court and on some of the appeal work before I left ACLJ.
>
> The scholarships were awarded based on satisfying three criteria: a
> defined level of academic success; a defined level of financial need
> based on family income; and intent to attend a qualifying Washington
> university (including private, pervasively sectarian universities).
> Davey could have taken exactly the same courses he would take as a
> "theology major" simply by selecting a major that would not have
made
> the nature of his coursework evident, but to put it simply, Mr. Davey
> wasn't that kind of guy. It was a classic situation
religion-neutral,
> need/performance driven scholarship system that was driven by a purpose
> statement of preparing Washington students for a productive future.
How
> the state's interest in non-appropriation of state funds for theology
> training plays into that, I don't know. Its hyper-separation on
> steroids.
>
> As to Rehnquist's apparent need to discern "animus" to justify a
free
> exercise claim, that seems to be far outside the four corners of the
> simple text of the free speech clause and leaves the government with
> rather broad authority to chill religious _expression_ based on little
> more than notional interests. Certainly, I think animus in Davey
could
> be properly inferred from the program's purpose statement, as the state
> was making a value judgement that being a pastor would not be a
> productive role for a Washington citizen.
>
> Anyway, this is off the top of my head--gotta get back to briefing.
> Sour grapes here? Well...sure. I could barely recognize the
case when
> I read the opinion.....my sense is the Court picked the wrong vehicle to
> draw a line, and ran over both the Constitutiona and a sterling young
> man in the process.
>
> /S/ Gary S. McCaleb
> ________________________________
>
>
>
> Gary S. McCaleb
> Senior Counsel
> (480) 444-0020 ext. 8046
> (480) 444-0028 fax
> [EMAIL PROTECTED]
<mailto:[EMAIL PROTECTED]>
> ________________________________
>
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> ________________________________
>
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of
> [EMAIL PROTECTED]
> Sent: Saturday, September 30, 2006 8:10 AM
> To: religionlaw@lists.ucla.edu
> Subject: Re: Locke v. Davey Analysis
>
>
>
> I think this is not a persuasive reading of
either the opinion
> or any opinion onto which the author, Rehnquist, would have signed on.
> Rehnquist always looked for the dispositive element in a case, and was
> rarely interested in multifactorial tests, or the kind of intuitive
> weighing they require. If you trace Rehnquist's free exercise
opinions
> whether maj or diss, he had a consistent view that animus or hostility
> is an important, even determinative, element under the Free Exercise
> Clause. This opinion reads like a summary, a looking back, of his
free
> exercise views, and the most important paragraph is the one where he
> summarizes the major cases finding a violation, saying that they all
> involved animus to religion (or religious reasons) in some way. He
> distinguished the Locke situation on the ground (more than once) that
> there was no proof of animus.
>
> I understand that there are those on the list
who would argue
> that animus cannot be pivotal in all free exercise cases, because they
> would say that Sherbert is a case that does not involve animus. That
is
> not his reading, obviously, as he includes it in the cases where animus
> was proved. (If you look at Smith's reading of Sherbert, the animus
> arises from the fact that religious reasons are treated less well than
> secular reasons).
>
>
> Marci Hamilton
>
>
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
>
>
>
>
>
>
> In a message dated 9/29/2006 3:04:01 P.M.
Eastern Standard Time,
> [EMAIL PROTECTED] writes:
>
>
> I am curious as to
how those on this list would
> characterize the analysis used by the majority in Locke v. Davey.
>
> The Court
obviously rejected the notion that non-neutral
> laws essentially always violate the Free Exercise Clause, (presumably)
> without regard to the magnitude of the burden imposed on the claimant's
> religious exercise.
>
> At the same the
Court did not apply a straightforward
> substantial burden/compelling state interest/least restrictive means
> analysis. As I read the majority opinion, after acknowledging the
> non-neutrality of the law in question, the Court looked at the magnitude
> of the burden not in isolation, but rather in the context of other
> factors, including the character of the law that caused the burden on
> Davey and the importance of the state's interest.
>
> [When I say
"the character of the law that caused the
> burden on Davey," I am referring to the Court's observations about
the
> otherwise religion-friendly character of Washington's education aid law
> (e.g., Davey could have kept his scholarship and majored in something
> other than devotional theology at the seriously religious Northwest
> College).]
>
> In other words,
the Court seemed to be applying a
> multifactorial approach, under which a claimant's weakness on one factor
> (e.g., burden) theoretically might be rehabilitated by his or her
> strength on others (e.g., the magnitude of the state's interest).
>
> Do you agree or
disagree? Thanks.
>
> Greg Baylor
>
> Gregory S. Baylor
> Director, Center
for Law & Religious Freedom
> Christian Legal
Society
> 8001 Braddock
Road, Suite 300
> Springfield, VA
22151
> (703) 642-1070 x
3502
> (703) 642-1075 fax
> [EMAIL PROTECTED]
> http://www.clsnet.org
<http://www.clsnet.org/>
>
>
>
>
>
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
