Re: EC & Compelling Interest

2007-07-22 Thread Rick Duncan 
Art's example is a good one, but I have usually thought of military chaplins as 
involving a special situation pursuant to which the EC is not violated (as 
opposed to a situation in which the EC is violated, but justified by a 
compelling interest in protecting the spiritual needs of military forces). 
   
  Is there really a compelling interest in supplying chaplins for hundreds of 
thousands of military stationed in California, or New Jersey, or Virginia, or 
Nebraska?
   
  See also Chambers (not a compelling interest for legislative prayer case, but 
rather a special rule involving a special situation which, due to history & 
tradition, does not trigger the EC).
   
  Rick Duncan

[EMAIL PROTECTED] wrote:  How about hiring chaplains for the armed forces?

In a message dated 7/22/07 5:34:54 PM, [EMAIL PROTECTED] writes:

  The tough question is to come up with a concrete example of where some 
compelling interest would indeed be in play.  Rick, what examples did you have 
in mind?





**
Get a sneak peek of the all-new AOL at 
http://discover.aol.com/memed/aolcom30tour 
___
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.


   
-
Looking for a deal? Find great prices on flights and hotels with Yahoo! 
FareChase.___
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.

RE: EC & Compelling Interest

2007-07-22 Thread Brian Landsberg 
Wouldn't this line of analysis lead to the conclusion that the government may 
establish a religion so long as it can show that most constituents want an 
established religion?  

I don't think that community desires alone can ever be a compelling interest.

>>> Rick Duncan <[EMAIL PROTECTED]> 7/22/2007 4:44 PM >>>
When the Ct strikes down a law under the EC, it usually declares the law 
unconstitutional w/out any type of "scrutiny." Why doesn't the Ct at least go 
through the motions of applying the compelling interest test? Is the EC an 
absolute, categorical rule prohibiting laws that establish religion?
   
  Take the Nativity display in Allegheny County--should the county govt argue 
that it has a compelling interest in recognizing that many persons are willing 
recipients of the county's speech recognizing that some of its citizens are 
celebrating a religious holiday on Dec 25? Why should the Pl, whose liberty is 
not in any way restricted by a passive holiday display, have the right to 
censor a display that means a great deal to others in the community who wish to 
view the display? Why not at least analyze the compelling interest test in 
cases like these?
   
  I have always assumed that the EC here is a structural limitation on the 
power of govt, one that denies govt the power to "endorse" religion even if it 
has good reasons to put up the display.
   
  Am I wrong?
   
  Rick Duncan

"Volokh, Eugene" <[EMAIL PROTECTED]> wrote:
  Rick asks an excellent question; the doctrinal answer seems to be 
that some behavior -- such as coercion of religious practice -- is 
categorically unconstitutional, with no strict scrutiny exception, but the 
Court often talks about rights as being absolute and then turns around and sets 
up some strict scrutiny exception (even if it concludes that exception is 
inapplicable).  Compare, e.g., Everson's talk of no preference among religions 
with Larson v. Valente's strict scrutiny for denominational discrimination 
(under the Establishment Clause, in fact).
   
  The tough question is to come up with a concrete example of where some 
compelling interest would indeed be in play.  Rick, what examples did you have 
in mind?
   
  Eugene
   
  

  
-
  From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Sunday, July 22, 2007 12:07 PM
To: Law & Religion issues for Law Academics
Subject: EC & Compelling Interest


  
  A question for this august body of learned friends:
   
  When a state violates the EC, is this absolutely unconstitutional or may the 
state attempt to show a compelling interest to justify an establishment? Does 
any SCt case clearly focus on this issue? Are there good law review articles 
addrsssing it?
   
  Does it matter what kind of EC violation the state has committed?
   
  Cheers, 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.


-
  Shape Yahoo! in your own image. Join our Network Research Panel today! 
___
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.


   
-
Got a little couch potato? 
Check out fun summer activities for kids.
___
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.

RE: EC & Compelling Interest

2007-07-22 Thread Rick Duncan 
When the Ct strikes down a law under the EC, it usually declares the law 
unconstitutional w/out any type of "scrutiny." Why doesn't the Ct at least go 
through the motions of applying the compelling interest test? Is the EC an 
absolute, categorical rule prohibiting laws that establish religion?
   
  Take the Nativity display in Allegheny County--should the county govt argue 
that it has a compelling interest in recognizing that many persons are willing 
recipients of the county's speech recognizing that some of its citizens are 
celebrating a religious holiday on Dec 25? Why should the Pl, whose liberty is 
not in any way restricted by a passive holiday display, have the right to 
censor a display that means a great deal to others in the community who wish to 
view the display? Why not at least analyze the compelling interest test in 
cases like these?
   
  I have always assumed that the EC here is a structural limitation on the 
power of govt, one that denies govt the power to "endorse" religion even if it 
has good reasons to put up the display.
   
  Am I wrong?
   
  Rick Duncan

"Volokh, Eugene" <[EMAIL PROTECTED]> wrote:
  Rick asks an excellent question; the doctrinal answer seems to be 
that some behavior -- such as coercion of religious practice -- is 
categorically unconstitutional, with no strict scrutiny exception, but the 
Court often talks about rights as being absolute and then turns around and sets 
up some strict scrutiny exception (even if it concludes that exception is 
inapplicable).  Compare, e.g., Everson's talk of no preference among religions 
with Larson v. Valente's strict scrutiny for denominational discrimination 
(under the Establishment Clause, in fact).
   
  The tough question is to come up with a concrete example of where some 
compelling interest would indeed be in play.  Rick, what examples did you have 
in mind?
   
  Eugene
   
  

  
-
  From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Sunday, July 22, 2007 12:07 PM
To: Law & Religion issues for Law Academics
Subject: EC & Compelling Interest


  
  A question for this august body of learned friends:
   
  When a state violates the EC, is this absolutely unconstitutional or may the 
state attempt to show a compelling interest to justify an establishment? Does 
any SCt case clearly focus on this issue? Are there good law review articles 
addrsssing it?
   
  Does it matter what kind of EC violation the state has committed?
   
  Cheers, 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.


-
  Shape Yahoo! in your own image. Join our Network Research Panel today! 
___
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.


   
-
Got a little couch potato? 
Check out fun summer activities for kids.___
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.

RE: EC & Compelling Interest

2007-07-22 Thread Rick Duncan 
Well, could you argue that supporting a quality education for all students is a 
compelling interest that justifies direct funding of all schools, including 
religious schools?
   
  Or, as in a recent federal district ct case in Colorado, does compliance with 
a state constitution barring funding sectarian education serve as a compelling 
justification for denominational discrimination including non-pervasively 
sectarian religious colleges but excluding pervasively sectarian religious 
colleges?
   
  Rick Duncan

"Volokh, Eugene" <[EMAIL PROTECTED]> wrote:
  Rick asks an excellent question; the doctrinal answer seems to be 
that some behavior -- such as coercion of religious practice -- is 
categorically unconstitutional, with no strict scrutiny exception, but the 
Court often talks about rights as being absolute and then turns around and sets 
up some strict scrutiny exception (even if it concludes that exception is 
inapplicable).  Compare, e.g., Everson's talk of no preference among religions 
with Larson v. Valente's strict scrutiny for denominational discrimination 
(under the Establishment Clause, in fact).
   
  The tough question is to come up with a concrete example of where some 
compelling interest would indeed be in play.  Rick, what examples did you have 
in mind?
   
  Eugene
   
  

  
-
  From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Sunday, July 22, 2007 12:07 PM
To: Law & Religion issues for Law Academics
Subject: EC & Compelling Interest


  
  A question for this august body of learned friends:
   
  When a state violates the EC, is this absolutely unconstitutional or may the 
state attempt to show a compelling interest to justify an establishment? Does 
any SCt case clearly focus on this issue? Are there good law review articles 
addrsssing it?
   
  Does it matter what kind of EC violation the state has committed?
   
  Cheers, 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.


-
  Shape Yahoo! in your own image. Join our Network Research Panel today! 
___
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.


   
-
Get the Yahoo! toolbar and be alerted to new email wherever you're surfing. ___
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.

Re: EC & Compelling Interest

2007-07-22 Thread ArtSpitzer 
How about hiring chaplains for the armed forces?

In a message dated 7/22/07 5:34:54 PM, [EMAIL PROTECTED] writes:

>     The tough question is to come up with a concrete example of where some 
> compelling interest would indeed be in play.  Rick, what examples did you 
> have in mind?
> 




**
 Get a sneak peek of the all-new AOL at 
http://discover.aol.com/memed/aolcom30tour
___
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.

RE: EC & Compelling Interest

2007-07-22 Thread Volokh, Eugene 
Rick asks an excellent question; the doctrinal answer seems to be
that some behavior -- such as coercion of religious practice -- is
categorically unconstitutional, with no strict scrutiny exception, but
the Court often talks about rights as being absolute and then turns
around and sets up some strict scrutiny exception (even if it concludes
that exception is inapplicable).  Compare, e.g., Everson's talk of no
preference among religions with Larson v. Valente's strict scrutiny for
denominational discrimination (under the Establishment Clause, in fact).
 
The tough question is to come up with a concrete example of where
some compelling interest would indeed be in play.  Rick, what examples
did you have in mind?
 
Eugene
 





From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Sunday, July 22, 2007 12:07 PM
To: Law & Religion issues for Law Academics
Subject: EC & Compelling Interest


A question for this august body of learned friends:
 
When a state violates the EC, is this absolutely
unconstitutional or may the state attempt to show a compelling interest
to justify an establishment? Does any SCt case clearly focus on this
issue? Are there good law review articles addrsssing it?
 
Does it matter what kind of EC violation the state has
committed?
 
Cheers, 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.




Shape Yahoo! in your own image. Join our Network Research Panel
today!
  

___
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.

EC & Compelling Interest

2007-07-22 Thread Rick Duncan 
A question for this august body of learned friends:
   
  When a state violates the EC, is this absolutely unconstitutional or may the 
state attempt to show a compelling interest to justify an establishment? Does 
any SCt case clearly focus on this issue? Are there good law review articles 
addrsssing it?
   
  Does it matter what kind of EC violation the state has committed?
   
  Cheers, 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.


   
-
Shape Yahoo! in your own image.  Join our Network Research Panel today!___
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.