Fn.23 of /Larson/ seems to distinguish disparate impact from
deliberate gerrymandering. The footnote is nearly a page long but
the heart of it is this:
The statute "is not simply a facially neutral statute, the
provisions of which happen to have a 'disparate impact' upon
different religious organizations. On the contrary, [the section]
makes explicit and deliberate distinctions between different
religious organizations."
Of course most distinctions are deliberate, but in the context of
the facts and the rest of the opinion, I thake this to mean
distinctions deliberately intended to eliminate the Unification
Church and groups that were similar to it in the view of the
legislature.
Quoting [EMAIL PROTECTED]:
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
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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.
_______________________________________________
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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.
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
Links:
------
[1]
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_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
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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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