In terms of explaining the invocation of strict scrutiny in Larson, there is potentially a very practical explanation.
Isn't Larson really a free exercise and/or equal protection case under the guise of the Establishment Clause, thus making strict scrutiny the suitable standard? The litigants argued under all three clauses, but the Court chose (oddly) the EC. My guess is that the Court did not want to cause tension with its view of FEC challenges to tax schemes (e.g., US v. Lee, decided the same term as Larson) and did not want to deal with religion as a classification under the EPC. (It had rarely (if ever?) dealt with religious discrimination under the EPC to that point in time and has rarely (if ever?) done since. There are dicta regarding religion as a suspect classification, but the element of immutability in the recognition of suspect or quasi-suspect classes posed and poses some difficulties when it comes to religion. Besides, it is normally addressable under the FEC.) In a sense, Larson's relationship to the FEC, EPC, and EC is analogous to Metropolitan Life v. Ward's relationship to the Dormant Commerce Clause, the Privileges and Immunities Clause of article VI, and the Equal Protection Clause. That latter case, involving discrimination against out-of-state insurance companies, was really a DCC and/or P&IC case, but neither of those clauses was available. (Congress had authorized such discrimination under the DCC, and corporations can't sue under the P&IC.) What the Court did was to invoke a rationality-plus EPC analysis and strike down the law. In the same way, the Court in Larson was addressing and invalidating constitutionally undesirable conduct without disrupting the existing FEC and EPC landscape. Yes, it left some doctrinal incoherence in its wake, but the Court was likely of the view that such incoherence under the EC (truly problematic only to law professors) was less disruptive or risky than what would result from invalidating the statute under the FEC or EPC. Just some thoughts for a summer day. Scott Idleman Marquette Law School e From: [email protected] [mailto:[email protected]] On Behalf Of Rick Duncan Sent: Wednesday, July 01, 2009 21:58 To: Law & Religion issues for Law Academics Subject: Establishment Clause and Strict Scrutiny (and Locke v. Davey) Why was strict scrutiny invoked in Larson? Isn't the structural prohibition--whether conceived of as non-endorsement, neutrality among religions, or non-advance/non-inhibit--clearly involved in cases of denominational preferences? Why not simply say that denominational preferences are forbidden--period-- because they violate the neutrality/non-endorsement/non-advancement rule? I am currently working on a piece, for a law review symposium, on Larson and Locke v. Davey. Locke v. Davey can be viewed as a case involving denominational discrimination between religious schools that teach theology from a "devotional" or believing perspective and other religious schools that are willing to self-certify that their theology majors are not pursuing a degree in devotional theology. If Josh Davey's brother were to litigate the same case tomorrow, I would like to see the case developed as one involving denominational preferences under the EC and Larson. Washington did not define "devotional theology," nor did it make its own determination as to which schools taught devotional as opposed to non-devotional theology. Instead, it allowed schools to self-certify. I have anecdotal evidence that some religious schools (e.g. Gonzaga) self-certified that their theology programs were not devotional. Other schools, such as Northwest College, self-certified the other way. Thus, theology majors studying for a career in ministry at the former schools were funded, and those at the latter schools were denied funding. Is this not a denominational preference under the EC? Under this program, the state is paying ministry students to choose some religious colleges over others when pursuing their degrees in religious studies. If so, we don't need to talk about substantial burdens under the FEC, nor about play in the joints between what the EC permits and the FEC requires. The EC forbids denominational discrimination and so does the FEC! As I said, there is no clear evidence that I can find in public records about this, but if the case were to arise under the EC, discovery might well document the anecdotal stories I have heard of disparate treatment of theology majors at different religious colleges. And if denominational discrimination exists, then Davey should come out the other way under the EC. No? Or does the EC contain a substantial burden requirement? If so, only in funding cases or in public display cases as well? Cheers, Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill) --- On Wed, 7/1/09, [email protected] <[email protected]> wrote: From: [email protected] <[email protected]> Subject: Re: Establishment Clause and Strict Scrutiny To: [email protected] Date: Wednesday, July 1, 2009, 5:55 PM Strict scrutiny fits uneasily (and therefore appears in only one case) in Establishment Clause doctrine, because the Establishment Clause is a structural element of the Constitution more akin to the separation of federal powers than the rights-bearing provisions of the Bill of Rights. If one assesses the doctrine as a whole, it is far more reminiscent of the separation of powers doctrine than it is of the rights clauses. Just as the separation of powers cases are more complicated and less predictable than the Free Exercise or the Free Speech Clauses (even with the latter's minutiae), the Establishment Clause is as well. The challenge to a cleaner doctrine lies in the plasticity of power, which means that the relevant players are constantly operating and changing to overtake the power of the other. At a fundamental level, church and state operate no differently than do rival branches of the government. In my view, this is why the attempt to reduce the Establishment Clause to a right of religious entities is a radical movement. Such an interpretation turns the Establishment Clause into a servant of the Free Exercise Clause, rather than the Constitution's structural means of limiting religious entities from overtaking the government (and vice versa), which was a live and serious concern on the part of James Madison in the Memorial and Remonstrance. On the shameless plug side, I have been working on this approach for a decade now and originally in an exchange in the Conn L. Rev.-- Power, the Establishment Clause, and Vouchers, 31 Conn. L. Rev. 807 (1999); Reply, 31 Conn L Rev 1001 (1999). Marci Marci A. Hamilton Paul R. Verkuil Chair in Public Law Benjamin N. Cardozo School of Law Yeshiva University I am curious whether there is any commentary on why Establishment Clause doctrine does not include a strict scrutiny framework. Do list members think that the Establishment Clause does not include this framework because the clause is a structural guarantee and is thus different from the many constitutional provisions that have been subject to a balancing of government and individual interests? Or is it because we just don't think that a situation would arise in which promoting religion would actually be necessary to promote some governmental interest? Are there any other ideas about why the Establishment Clause is different? Thanks. -Jesse Merriam _____ It's raining cats and dogs -- Come to PawNation <http://www.pawnation.com/?ncid=emlcntnew00000008> , a place where pets rule! -----Inline Attachment Follows----- _______________________________________________ To post, send message to [email protected] 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 [email protected] 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.
