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 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 +0000
>
> 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.
>
>
> 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.
>
>
>
> ---------------------------------
Yahoo! oneSearch: Finally, mobile search that gives answers, not web links.
--- Begin Message ---
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 +0000
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.
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.
---------------------------------
Yahoo! oneSearch: Finally, mobile search that gives answers, not web links. _______________________________________________
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
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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
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