I think the Court would distinguish Locke as a clergy-education case. Mark S. Scarberry Pepperdine University School of Law
________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Christopher C. Lund Sent: Wednesday, July 25, 2007 1:29 PM To: Law & Religion issues for Law Academics Subject: RE: Colorado Christian University Case: EC & Compelling Interest I have a somewhat different take than Marty. My sense is that this is denominational discrimination. If Colorado say had special reporting and registration requirements, but only for "pervasively sectarian" schools like CCU (but not for other religious schools), that would fall under Larson, right? Isn't Larson itself the root of this problem? It was decided in 1982, when the "pervasively sectarian" rule was in full effect. What that rule meant was that some denominational discrimination was not just permitted, but constitutionally required. Larson does not address that wrinkle. But seeing the "pervasively sectarian" limitation on funding as an implicit exception to Larson's rule about denominational discrimination seems to be the only way of squaring Larson's text with the aid cases of that era. I guess the question now is whether Zelman's approval of indirect aid to pervasively sectarian institutions makes a Larson claim possible when such institutions are excluded. I'm not unsympathetic, but it seems a hard argument to make, especially given the Court's rejection of the EC claim in Locke v. Davey (fn10). ________________________________
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