And how would you, Rick, analyze the free speech issue if the the exclusion covered: "participation in activities of organizations teaching about, counseling, advocating, or performing abortions"? In Locke, and in the abortion case, and in your hypothetical, the government must only have a non-arbitrary reason for the exclusion. In Locke, the non-arbitrary reason had to do with not funding the training of clergy; in my hypothetical, the reason would be just like that in Rust v. Sullivan and its progeny (that the government is "pro-life," and does not want its resources to support a certain cause, thought immoral by many citizens). Perhaps your hypothetical would similarly be OK, particularly on the gay marriage point. Excluding organizations that teach "about the need to reduce global warming" is a bit tougher, but not much -- the cause is controversial, and the state does not want to be creating incentives for people to advance that cause. They remain free to advance it with their own resources.
In Bowman, the non-arbitrary reason for exclusion is not so easy to find, but perhaps it is designed to keep the government away from the question of whether a particular religious organization serves any public good (the organization might get a tax exemption, but those who help it can't get this sort of credit toward a military pension). If all religions must be included in the retirement credit system, perhaps the government would be a bit stingier in recognizing a religion for tax exemption purposes. That doesn't sound to me like a healthy constitutional trade-off. The rule upheld in Bowman is a product of a now abandoned constitutional regime, which is why Bob Tuttle and I were surprised that DoD still had this rule, and that DOJ defended it. But its provenance does not make it unconstitutional, especially in light of Locke. Chip ---- Original message ---- >Date: Mon, 4 May 2009 12:38:43 -0700 (PDT) >From: Rick Duncan <nebraskalawp...@yahoo.com> >Subject: Re: Bowman v. U.S. >To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu> > >How would you all analyze the Free Speech Clause issue in a >case that was like Bowman except ?" > >Would it violate the Free Speech Clause to allow military >service personnel to accumulate pension rights via volunteer >service in all non-profits except those excluded in the hypo >above? If so, don't we have the same free speech issue when >the exclusion concerns volunteering for schools teaching >from a religious perspective? > >Again, if the dictum in Locke v. Davey applies, it applies >to these secular speech exclusions as well, since Rehnquist >merely concluded that a scholarship is not a forum >triggering the Free Speech Clause. So, under Davey, a >scholarship exclusion for students majoring in "gender >studies from a feminist perspective" would also have failed >to trigger the Free Speech Clause. If this seems wrong, it >is because it does indeed implicate the FSC to take the >viewpoint of the major into account when awarding >scholarships such as the Promise Scholarship. The Rehnquist >dictum in Davey is both unreasoned and wrong. > >Rick Duncan >Welpton Professor of Law >University of Nebraska College of Law >Lincoln, NE 68583-0902 > >--- On Mon, 5/4/09, Volokh, Eugene <vol...@law.ucla.edu> >wrote: > > From: Volokh, Eugene <vol...@law.ucla.edu> > Subject: Bowman v. U.S. > To: "Law & Religion issues for Law Academics" > <religionlaw@lists.ucla.edu> > Date: Monday, May 4, 2009, 9:41 AM > > Any thoughts on Bowman v. U.S., a Sixth Circuit case > decided last > December but just redesignated two weeks ago as being for > publication? > Federal law allows a wide range of public and community > service by > military personnel - including working for organizations > that provide > "elementary, secondary, or postsecondary school teaching," > or "any other > public or community service" -- to "count toward [one's] > years of > service needed to obtain a full twenty-year military > retirement." But > the program excludes participation in activities of > "organizations > engaged in religious activities, unless such activities > are unrelated to > religious instructions, worship services, or any form of > proselytization" (as well as in activities of for-profit > businesses, > labor unions, and partisan political organizations). > > Thus, for instance, if someone were volunteering to teach > in a school > program aimed at spreading various controversial views on > environmental > responsibility, or social justice, or civil liberties, > that would > presumably count. But if someone were volunteering to > teach in a school > program aimed at spreading religious views, that would not > count. The > Sixth Circuit upheld this against a Free Exercise Clause > challenge, > citing Locke v. Davey. Is that right? What should the > result have been > under the Free Speech Clause, if such a claim had been > made (presumably > relying on Rosenberger)? > > Eugene > _______________________________________________ > 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. Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 _______________________________________________ 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.
