Re: EC & Compelling Interest

[Rick Duncan]

Marty: I think you should read the CCU decision and its facts a bit more 
carefully. What is going on in Colorado does indeed amount to denominational 
discrimination within the meaning of Larson. And the scholarship program is 
indeed a Zelman-like private choice program.
   
  Unlike Davey, which did include pervasively sectarian colleges within the 
program and excluded only devotional theology majors at any school, Colorado 
allows scholarship funds to be used at some religious colleges but not at 
others. Thus, there is no need for play in the joints between what the EC 
permits and the FEC requires, because the EC forbids denominational 
discrimination as the clearest command of the Clause.
   
  Rick Duncan

[EMAIL PROTECTED] wrote:
  I've barely glanced at the decision, but from what I've quickly read, I don't 
think it's fair to call what Colorado has done denominational discrimination, 
notwithstanding what the court wrote. It's simply a prohibition on funding 
religious education itself, of *any* denomination. "Pervasively sectarian" 
schools are automatically ineligible not because they are of a particular 
denomination, but because (by definition) the funds would *necessarily* fund 
religious teaching ("indoctrination") in such schools.

It's not clear to me whether any of the aid programs at issue here are 
Zelman-like voucher programs. They don't appear to be. But if any of them were, 
the only question would be whether the logic of Locke v. Davey applies here (I 
think it probably does).

If, instead, some of the aid programs at issue involve direct aid, as in 
Mitchell v. Helms, then the aid itself cannot go to CCU *under the federal 
Constitution,* because under the governing O'Connor opinion (and even under the 
Thomas plurality), direct *financial* aid may not be used for inculcation of 
religious truth. 


-- Original message --
From: Rick Duncan 
> Art: 
> 
> Colorado has a college scholarship program that can be used to attend any 
> public or private college including non-pervasively sectarian religious 
> colleges 
> but excluding pervasively sectarian religious colleges. In other words, 
> students 
> who attend non-pervasively sectarian (but nevertheless sectarian) religious 
> colleges receive funding but those who attend "pervasively sectarian" 
> colleges 
> may not use their scholarships.
> 
> The dist ct held that this amounts to denominational discrimination contrary 
> to Larson and the "clearest command" of the EC, but that the state's interest 
> in not funding pervasively sectarian education was a compelling interest that 
> trumped the federal EC.
> 
> Can this decision be correct? Does Colorado's interest in discriminating 
> among 
> religious colleges really trump the clearest command of the EC forbidding 
> such 
> denominational discrimination? Or, to paraphrase Doug Laycock, is this 
> nothing 
> more than the state saying "we disagree with the EC as it has been 
> interpreted 
> by the SCt?"
> 
> Rick Duncan
> 
> [EMAIL PROTECTED] wrote:
> It seems to me that if a state says, "we'll give grants to any social service 
> agency that operates a 24/7 pregnancy prevention hotline," and denomination X 
> says "we'd like a grant, but our faith forbids us from operating anything on 
> the 
> sabbath," and the state says "too bad, then," that's not what the 
> Constitution 
> forbids as "denominational discrimination." Some denominations just can't 
> qualify for the terms of the grant. I don't know the Colorado Christian 
> University case but it sounds like the same sort of thing.
> 
> Art Spitzer
> 
> 
> In a message dated 7/23/07 10:54:49 PM, [EMAIL PROTECTED] writes:
> 
> 
> Okay, Doug, then how do you decide the Colorado Christian University case in 
> which the state has engaged in denominational discrimination against 
> pervasively 
> sectarian schools, but claims to have a state anti-establishment compelling 
> interest (in not funding sectarian schools) that trumps the federal EC 
> violation?
> 
> Is this a case in which the state compelling interest in not funding certain 
> religious colleges is merely a disagreement with the clearest command of the 
> federal EC prohibiting denominational discrimination?
> 
> 
> 
> 
> 
> 
> **
> 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 Colleg

Re: EC & Compelling Interest

[marty . lederman]

I've barely glanced at the decision, but from what I've quickly read, I don't 
think it's fair to call what Colorado has done denominational discrimination, 
notwithstanding what the court wrote.  It's simply a prohibition on funding 
religious education itself, of *any* denomination.  "Pervasively sectarian" 
schools are automatically ineligible not because they are of a particular 
denomination, but because (by definition) the funds would *necessarily* fund 
religious teaching ("indoctrination") in such schools.

It's not clear to me whether any of the aid programs at issue here are 
Zelman-like voucher programs.  They don't appear to be.  But if any of them 
were, the only question would be whether the logic of Locke v. Davey applies 
here (I think it probably does).

If, instead, some of the aid programs at issue involve direct aid, as in 
Mitchell v. Helms, then the aid itself cannot go to CCU *under the federal 
Constitution,* because under the governing O'Connor opinion (and even under the 
Thomas plurality), direct *financial* aid may not be used for inculcation of 
religious truth. 


 -- Original message --
From: Rick Duncan <[EMAIL PROTECTED]>
> Art: 
>
>   Colorado has a college scholarship program that can be used to attend any 
> public or private college including non-pervasively sectarian religious 
> colleges 
> but excluding pervasively sectarian religious colleges. In other words, 
> students 
> who attend non-pervasively sectarian (but nevertheless sectarian) religious 
> colleges receive funding but those who attend "pervasively sectarian" 
> colleges 
> may not use their scholarships.
>
>   The dist ct held that this amounts to denominational discrimination 
> contrary 
> to Larson and  the "clearest command" of the EC, but that the state's 
> interest 
> in not funding pervasively sectarian education was a compelling interest that 
> trumped the federal EC.
>
>   Can this decision be correct? Does Colorado's interest in discriminating 
> among 
> religious colleges really trump the clearest command of the EC forbidding 
> such 
> denominational discrimination? Or, to paraphrase Doug Laycock, is this 
> nothing 
> more than the state saying "we disagree with the EC as it has been 
> interpreted 
> by the SCt?"
>
>   Rick Duncan
> 
> [EMAIL PROTECTED] wrote:
>   It seems to me that if a state says, "we'll give grants to any social 
> service 
> agency that operates a 24/7 pregnancy prevention hotline," and denomination X 
> says "we'd like a grant, but our faith forbids us from operating anything on 
> the 
> sabbath," and the state says "too bad, then," that's not what the 
> Constitution 
> forbids as "denominational discrimination."  Some denominations just can't 
> qualify for the terms of the grant.  I don't know the Colorado Christian 
> University case but it sounds like the same sort of thing.
> 
> Art Spitzer
> 
> 
> In a message dated 7/23/07 10:54:49 PM, [EMAIL PROTECTED] writes:
> 
> 
>   Okay, Doug, then how do you decide the Colorado Christian University case 
> in 
> which the state has engaged in denominational discrimination against 
> pervasively 
> sectarian schools, but claims to have a state anti-establishment compelling 
> interest (in not funding sectarian schools) that trumps the federal EC 
> violation?
>  
> Is this a case in which the state compelling interest in not funding certain 
> religious colleges is merely a disagreement with the clearest command of the 
> federal EC prohibiting denominational discrimination?
> 
> 
> 
> 
> 
> 
> **
> 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.
> 
> 
>
> -
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--- Begin Message ---
Art: 
   
  Colorado has a college scholarship program that can be used to attend any 
public or private college including non-pervasively sectarian religious

Re: EC & Compelling Interest

[Rick Duncan]

Art: 
   
  Colorado has a college scholarship program that can be used to attend any 
public or private college including non-pervasively sectarian religious 
colleges but excluding pervasively sectarian religious colleges. In other 
words, students who attend non-pervasively sectarian (but nevertheless 
sectarian) religious colleges receive funding but those who attend "pervasively 
sectarian" colleges may not use their scholarships.
   
  The dist ct held that this amounts to denominational discrimination contrary 
to Larson and  the "clearest command" of the EC, but that the state's interest 
in not funding pervasively sectarian education was a compelling interest that 
trumped the federal EC.
   
  Can this decision be correct? Does Colorado's interest in discriminating 
among religious colleges really trump the clearest command of the EC forbidding 
such denominational discrimination? Or, to paraphrase Doug Laycock, is this 
nothing more than the state saying "we disagree with the EC as it has been 
interpreted by the SCt?"
   
  Rick Duncan

[EMAIL PROTECTED] wrote:
  It seems to me that if a state says, "we'll give grants to any social service 
agency that operates a 24/7 pregnancy prevention hotline," and denomination X 
says "we'd like a grant, but our faith forbids us from operating anything on 
the sabbath," and the state says "too bad, then," that's not what the 
Constitution forbids as "denominational discrimination."  Some denominations 
just can't qualify for the terms of the grant.  I don't know the Colorado 
Christian University case but it sounds like the same sort of thing.

Art Spitzer


In a message dated 7/23/07 10:54:49 PM, [EMAIL PROTECTED] writes:


  Okay, Doug, then how do you decide the Colorado Christian University case in 
which the state has engaged in denominational discrimination against 
pervasively sectarian schools, but claims to have a state anti-establishment 
compelling interest (in not funding sectarian schools) that trumps the federal 
EC violation?
 
Is this a case in which the state compelling interest in not funding certain 
religious colleges is merely a disagreement with the clearest command of the 
federal EC prohibiting denominational discrimination?






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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.


   
-
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Re: EC & Compelling Interest

[ArtSpitzer]

It seems to me that if a state says, "we'll give grants to any social service 
agency that operates a 24/7 pregnancy prevention hotline," and denomination X 
says "we'd like a grant, but our faith forbids us from operating anything on 
the sabbath," and the state says "too bad, then," that's not what the 
Constitution forbids as "denominational discrimination."   Some denominations 
just 
can't qualify for the terms of the grant.   I don't know the Colorado Christian 
University case but it sounds like the same sort of thing.

Art Spitzer


In a message dated 7/23/07 10:54:49 PM, [EMAIL PROTECTED] writes:


> Okay, Doug, then how do you decide the Colorado Christian University case 
> in which the state has engaged in denominational discrimination against 
> pervasively sectarian schools, but claims to have a state anti-establishment 
> compelling interest (in not funding sectarian schools) that trumps the 
> federal EC 
> violation?
>   
>  Is this a case in which the state compelling interest in not funding 
> certain religious colleges is merely a disagreement with the clearest command 
> of 
> the federal EC prohibiting denominational discrimination?
> 
> 




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RE: EC & Compelling Interest

[Rick Duncan]

Okay, Doug, then how do you decide the Colorado Christian University case in 
which the state has engaged in denominational discrimination against 
pervasively sectarian schools, but claims to have a state anti-establishment 
compelling interest (in not funding sectarian schools) that trumps the federal 
EC violation?
   
  Is this a case in which the state compelling interest in not funding certain 
religious colleges is merely a disagreement with the clearest command of the 
federal EC prohibiting denominational discrimination?
   
  Rick Duncan

Douglas Laycock <[EMAIL PROTECTED]> wrote:
I agree with David.  I very briefly floated this idea as deserving 
exploration with respect to inner city schools sometime long ago -- in 1981 I 
think, in Columbia.  I don't think the Court ever entertained the idea for a 
minute in the Lemon era, and of course what is happening now is that they are 
moving in the direction of saying that aid to these programs does not violate 
the Establishment Clause even prima facie, so the issue of justification cannot 
arise.
  The trouble with Rick Duncan's examples is that the alleged compelling 
interests are simply negations of the clause.  Folks here really really want 
government support for their religion, and that desire is a compelling interest 
that justifies an exception to the rule against government support for 
religion.  There are obvious analogies in Mississippi in 1965, and among some 
affirmative action advocates today.  
  Compelling interests don't arise out of disagreement with the Court's 
interpretation of the underlying right.  Compelling interests generally arise 
out of some cross cutting need that arguably justifies an exception at the 
point of its intersection with the constitutional right.  Occasionally the area 
of intersection is pretty large, but it cannot just be that we really really 
don't like the underlying right as interpreted by the Court.  "It should go 
without saying that the vitality of these constitutional principles cannot be 
allowed to yield simply because of disagreement with them," the Court said in 
Brown II.  That aspiration has not actually been achieved, but we can hardly 
make it doctrine that disagreement overrides constitutional rights.
  Quoting "Saperstein, David (RAC)" <[EMAIL PROTECTED]>:

> I would assume that the area of EC issues that is most tempting to think
> of in terms of compelling interest has to do with government
> expenditures not speech. If e.g. studies actually showed that religious
> based substance treatment programs were decisively more effective than
> non-religious programs, is there a compelling government interest in
> addressing effectively the drug epidemic or in providing effective
> (often life-saving) health treatments for eligible patients that might
> justify funding to expand such programs?  In the case of damage or
> destruction from natural catastrophes, might a compelling interest test
> justify direct payments to rebuild churches? Might the compelling
> interest in protecting more likely terrorism targets e.g. NY City based
> synagogues, churches, mosques justify direct government funding for
> enhancing security?
>
>
>
> As I assume most of you know, I write as someone who in the main opposes
> such funding as unconstitutional and few courts have taken up this line
> but the funding arena is where I find folks falling back intuitively on
> this kind of thinking.
>
>
>
>
>
> 
>
> From: [EMAIL PROTECTED]
> [mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael
> Sent: Monday, July 23, 2007 7:06 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: EC & Compelling Interest
>
>
>
> Isn't the whole point of the EC that the government cannot be permitted
> to be a "willing speaker" when it comes to God-talk?  And isn't this the
> reason why a per se analysis is more consistent with that purpose than
> any compelling interest test might be?  The EC contains its own
> compelling interest, doesn't it?  And isn't that compelling interest
> essentially freedom FROM religion?  (Why, for the sake of discussion,
> should X's freedom OF religion trump Y's freedom FROM religion?  And
> isn't it true, therefore, that large claims of freedom OF religion, of
> Free Exercise, should be viewed with a great deal of suspicion
> especially given the categorical nature of the EC, of freedom FROM
> religion, whereas there is no comparable categorical freedom OF
> religion?  Of course my Protestant Empire thesis provides a useful way
> of assessing both freedom FROM and freedom OF religion claims.  I have
> another Protestant Empire piece coming out shortly which looks at this
> problem in part through the lens or prism of proselytizing in the public
> schools and elsewhere.)
>
>
>
> Isn't it also true, therefore, that to characterize the objection to the
> display as a "heckler's veto" begs the question to be decided?  If the
> government cannot be a willing speaker 

RE: EC & Compelling Interest

[Douglas Laycock]

 I agree with David.  I very briefly floated this idea as deserving
exploration with respect to inner city schools sometime long ago --
in 1981 I think, in Columbia.  I don't think the Court ever
entertained the idea for a minute in the /Lemon/ era, and of course
what is happening now is that they are moving in the direction of
saying that aid to these programs does not violate the Establishment
Clause even prima facie, so the issue of justification cannot arise.

 The trouble with Rick Duncan's examples is that the alleged
compelling interests are simply negations of the clause.  Folks here
really really want government support for their religion, and that
desire is a compelling interest that justifies an exception to the
rule against government support for religion.  There are obvious
analogies in Mississippi in 1965, and among some affirmative action
advocates today. 

 Compelling interests don't arise out of disagreement with the
Court's interpretation of the underlying right.  Compelling interests
generally arise out of some cross cutting need that arguably justifies
an exception at the point of its intersection with the constitutional
right.  Occasionally the area of intersection is pretty large, but it
cannot just be that we really really don't like the underlying right
as interpreted by the Court.  "It should go without saying that the
vitality of these constitutional principles cannot be allowed to
yield simply because of disagreement with them," the Court said in
/Brown II.  /That aspiration has not actually been achieved, but we
can hardly make it doctrine that disagreement overrides
constitutional rights.

 Quoting "Saperstein, David (RAC)" <[EMAIL PROTECTED]>:


I would assume that the area of EC issues that is most tempting to

think

of in terms of compelling interest has to do with government
expenditures not speech. If e.g. studies actually showed that

religious

based substance treatment programs were decisively more effective

than

non-religious programs, is there a compelling government interest

in

addressing effectively the drug epidemic or in providing effective
(often life-saving) health treatments for eligible patients that

might

justify funding to expand such programs?  In the case of damage or
destruction from natural catastrophes, might a compelling interest

test

justify direct payments to rebuild churches? Might the compelling
interest in protecting more likely terrorism targets e.g. NY City

based

synagogues, churches, mosques justify direct government funding for
enhancing security?



As I assume most of you know, I write as someone who in the main

opposes

such funding as unconstitutional and few courts have taken up this

line

but the funding arena is where I find folks falling back

intuitively on

this kind of thinking.







From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Newsom

Michael

Sent: Monday, July 23, 2007 7:06 PM
To: Law & Religion issues for Law Academics
Subject: RE: EC & Compelling Interest



Isn't the whole point of the EC that the government cannot be

permitted

to be a "willing speaker" when it comes to God-talk?  And isn't

this the

reason why a per se analysis is more consistent with that purpose

than

any compelling interest test might be?  The EC contains its own
compelling interest, doesn't it?  And isn't that compelling

interest

essentially freedom FROM religion?  (Why, for the sake of

discussion,

should X's freedom OF religion trump Y's freedom FROM religion? 

And

isn't it true, therefore, that large claims of freedom OF religion,

of

Free Exercise, should be viewed with a great deal of suspicion
especially given the categorical nature of the EC, of freedom FROM
religion, whereas there is no comparable categorical freedom OF
religion?  Of course my Protestant Empire thesis provides a useful

way

of assessing both freedom FROM and freedom OF religion claims.  I

have

another Protestant Empire piece coming out shortly which looks at

this

problem in part through the lens or prism of proselytizing in the

public

schools and elsewhere.)



Isn't it also true, therefore, that to characterize the objection

to the

display as a "heckler's veto" begs the question to be decided?  If

the

government cannot be a willing speaker then the "censor" is not the
"heckler" but is the EC itself.  It is interesting to recall that

the

pre-Incorporation common school religion cases divided on this

point.

The state courts that upheld prayer and Bible reading in public

schools

almost always characterized the objectors as "hecklers."  The

minority

of state courts that struck down or limited these practices never

used

such terminology in describing those who objected to these

religious

exercises.



Was the pre-Incorporation state court minority right when it struck

down

or limited Bible reading and prayer in the public schools? Were

Engel

and Schempp correctly decided?



__

RE: EC & Compelling Interest

[Saperstein, David \(RAC\)]

I would assume that the area of EC issues that is most tempting to think
of in terms of compelling interest has to do with government
expenditures not speech. If e.g. studies actually showed that religious
based substance treatment programs were decisively more effective than
non-religious programs, is there a compelling government interest in
addressing effectively the drug epidemic or in providing effective
(often life-saving) health treatments for eligible patients that might
justify funding to expand such programs?  In the case of damage or
destruction from natural catastrophes, might a compelling interest test
justify direct payments to rebuild churches? Might the compelling
interest in protecting more likely terrorism targets e.g. NY City based
synagogues, churches, mosques justify direct government funding for
enhancing security?  

 

As I assume most of you know, I write as someone who in the main opposes
such funding as unconstitutional and few courts have taken up this line
but the funding arena is where I find folks falling back intuitively on
this kind of thinking.  

 

 



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Newsom Michael
Sent: Monday, July 23, 2007 7:06 PM
To: Law & Religion issues for Law Academics
Subject: RE: EC & Compelling Interest

 

Isn't the whole point of the EC that the government cannot be permitted
to be a "willing speaker" when it comes to God-talk?  And isn't this the
reason why a per se analysis is more consistent with that purpose than
any compelling interest test might be?  The EC contains its own
compelling interest, doesn't it?  And isn't that compelling interest
essentially freedom FROM religion?  (Why, for the sake of discussion,
should X's freedom OF religion trump Y's freedom FROM religion?  And
isn't it true, therefore, that large claims of freedom OF religion, of
Free Exercise, should be viewed with a great deal of suspicion
especially given the categorical nature of the EC, of freedom FROM
religion, whereas there is no comparable categorical freedom OF
religion?  Of course my Protestant Empire thesis provides a useful way
of assessing both freedom FROM and freedom OF religion claims.  I have
another Protestant Empire piece coming out shortly which looks at this
problem in part through the lens or prism of proselytizing in the public
schools and elsewhere.) 

 

Isn't it also true, therefore, that to characterize the objection to the
display as a "heckler's veto" begs the question to be decided?  If the
government cannot be a willing speaker then the "censor" is not the
"heckler" but is the EC itself.  It is interesting to recall that the
pre-Incorporation common school religion cases divided on this point.
The state courts that upheld prayer and Bible reading in public schools
almost always characterized the objectors as "hecklers."  The minority
of state courts that struck down or limited these practices never used
such terminology in describing those who objected to these religious
exercises.

 

Was the pre-Incorporation state court minority right when it struck down
or limited Bible reading and prayer in the public schools? Were Engel
and Schempp correctly decided?

 



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Monday, July 23, 2007 5:14 PM
To: Law & Religion issues for Law Academics
Subject: RE: EC & Compelling Interest

 

Of course, one of the problems with a compelling interest test is no one
really knows what interests are extraordinarily important and which are
less so. And different folks may have different scales of importance.

 

In the case of a holiday display, one could view this as a case
involving a willing speaker (the county govt) and a willing audience
(those who wish to enjoy the holiday expression) who are being censored
by a heckler's veto under the EC. I think it is important that govt
speech be available to those who wish to receive it. Is it
"extraordinarily important?" I don't know. I would at least like to see
the Ct apply the compelling interest test and explain why this
speech/non-censorship interest is not important.

 

Alternatively, the compelling interest in such cases might be the govt's
strong interest in diversity and equal regard for religious citizens in
a pluralistic public square. If all sorts of secular holidays are
celebrated in the public square (gay pride, cinco de mayo, Columbus Day,
pork producers day, etc), many people of faith might well feel
disrespected and deeply injured by being the only subgroups in the
community whose holidays are not celebrated.

 

And what about the compelling interest of school officials to decide
which curriculum best meets the needs of students in the public schools
trumping EC attacks on ID, music curriculum, and the Pledge of
Allegiance? 

 

Just some thoughts. I don't think these cases are as easy as Eugene
seems to think they are, because what may n

RE: EC & Compelling Interest

[Newsom Michael]

Isn't the whole point of the EC that the government cannot be permitted
to be a "willing speaker" when it comes to God-talk?  And isn't this the
reason why a per se analysis is more consistent with that purpose than
any compelling interest test might be?  The EC contains its own
compelling interest, doesn't it?  And isn't that compelling interest
essentially freedom FROM religion?  (Why, for the sake of discussion,
should X's freedom OF religion trump Y's freedom FROM religion?  And
isn't it true, therefore, that large claims of freedom OF religion, of
Free Exercise, should be viewed with a great deal of suspicion
especially given the categorical nature of the EC, of freedom FROM
religion, whereas there is no comparable categorical freedom OF
religion?  Of course my Protestant Empire thesis provides a useful way
of assessing both freedom FROM and freedom OF religion claims.  I have
another Protestant Empire piece coming out shortly which looks at this
problem in part through the lens or prism of proselytizing in the public
schools and elsewhere.) 

 

Isn't it also true, therefore, that to characterize the objection to the
display as a "heckler's veto" begs the question to be decided?  If the
government cannot be a willing speaker then the "censor" is not the
"heckler" but is the EC itself.  It is interesting to recall that the
pre-Incorporation common school religion cases divided on this point.
The state courts that upheld prayer and Bible reading in public schools
almost always characterized the objectors as "hecklers."  The minority
of state courts that struck down or limited these practices never used
such terminology in describing those who objected to these religious
exercises.

 

Was the pre-Incorporation state court minority right when it struck down
or limited Bible reading and prayer in the public schools? Were Engel
and Schempp correctly decided?

 



From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Monday, July 23, 2007 5:14 PM
To: Law & Religion issues for Law Academics
Subject: RE: EC & Compelling Interest

 

Of course, one of the problems with a compelling interest test is no one
really knows what interests are extraordinarily important and which are
less so. And different folks may have different scales of importance.

 

In the case of a holiday display, one could view this as a case
involving a willing speaker (the county govt) and a willing audience
(those who wish to enjoy the holiday expression) who are being censored
by a heckler's veto under the EC. I think it is important that govt
speech be available to those who wish to receive it. Is it
"extraordinarily important?" I don't know. I would at least like to see
the Ct apply the compelling interest test and explain why this
speech/non-censorship interest is not important.

 

Alternatively, the compelling interest in such cases might be the govt's
strong interest in diversity and equal regard for religious citizens in
a pluralistic public square. If all sorts of secular holidays are
celebrated in the public square (gay pride, cinco de mayo, Columbus Day,
pork producers day, etc), many people of faith might well feel
disrespected and deeply injured by being the only subgroups in the
community whose holidays are not celebrated.

 

And what about the compelling interest of school officials to decide
which curriculum best meets the needs of students in the public schools
trumping EC attacks on ID, music curriculum, and the Pledge of
Allegiance? 

 

Just some thoughts. I don't think these cases are as easy as Eugene
seems to think they are, because what may not seem important to some may
seem very important to others. And the fact that the Ct doesn't even
play the game suggests that maybe the reason is that there is no game to
be played because the EC applies as a categorical rule without a
balancing test.

 

Rick Duncan

"Volokh, Eugene" <[EMAIL PROTECTED]> wrote:

Rick: You might well be right, but it's hard to tell without
some cases that test our sense of this, by coming out
differently under
strict scrutiny than under per se invalidation. It's hard to see
a
compelling interest behind government holiday displays -- one
can surely
argue that endorsement shouldn't be seen as implicating the
Establishment Clause, but it's harder to say that it does
implicate it
but that it's just extraordinarily important to allow it.

Eugene




From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Rick
Duncan
Sent: Sunday, July 22, 2007 4:45 PM
To: Law & Religion issues for Law Academics
Subject: RE: EC & Compelling Interest


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

EC & Compelling Interest

[thomas van orden]

When the SCt adopted O'Connor's Lynch analysis in deciding Allegheny, it essentially redecided Lynch.  Likewise, the cermionial deism idea redecides Marsh.  So I don't see Marsh, military chaplins, etc. as "special situations" but as non-violations of general EC principles even if the case preceeded the principle.  Neatness does not count.
 
Initially, I thought whether an EC violation could be saved by necessity was a trick question because I could not imagine a qualifying example.  I was too hasty.  Getting into heaven might fit.  Jesus said no one comes to the Father but through the Son but he did not say we had to go throught the state government to get to the Son.  That seems like a deal killer until you recall at oral argument in the Texas Monument case, Scalia said God gave us Texas.  Can you argue that we go through Texas state government to get to heaven?  If so, the sky - not the EC - is the limit.
 
Thomas Van Orden
Austin, Texas Missed the show?  Watch videos of the Live Earth Concert on MSN. 

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RE: EC & Compelling Interest

[Rick Duncan]

Of course, one of the problems with a compelling interest test is no one really 
knows what interests are extraordinarily important and which are less so. And 
different folks may have different scales of importance.
   
  In the case of a holiday display, one could view this as a case involving a 
willing speaker (the county govt) and a willing audience (those who wish to 
enjoy the holiday expression) who are being censored by a heckler's veto under 
the EC. I think it is important that govt speech be available to those who wish 
to receive it. Is it "extraordinarily important?" I don't know. I would at 
least like to see the Ct apply the compelling interest test and explain why 
this speech/non-censorship interest is not important.
   
  Alternatively, the compelling interest in such cases might be the govt's 
strong interest in diversity and equal regard for religious citizens in a 
pluralistic public square. If all sorts of secular holidays are celebrated in 
the public square (gay pride, cinco de mayo, Columbus Day, pork producers day, 
etc), many people of faith might well feel disrespected and deeply injured by 
being the only subgroups in the community whose holidays are not celebrated.
   
  And what about the compelling interest of school officials to decide which 
curriculum best meets the needs of students in the public schools trumping EC 
attacks on ID, music curriculum, and the Pledge of Allegiance? 
   
  Just some thoughts. I don't think these cases are as easy as Eugene seems to 
think they are, because what may not seem important to some may seem very 
important to others. And the fact that the Ct doesn't even play the game 
suggests that maybe the reason is that there is no game to be played because 
the EC applies as a categorical rule without a balancing test.
   
  Rick Duncan

"Volokh, Eugene" <[EMAIL PROTECTED]> wrote:
  Rick: You might well be right, but it's hard to tell without
some cases that test our sense of this, by coming out differently under
strict scrutiny than under per se invalidation. It's hard to see a
compelling interest behind government holiday displays -- one can surely
argue that endorsement shouldn't be seen as implicating the
Establishment Clause, but it's harder to say that it does implicate it
but that it's just extraordinarily important to allow it.

Eugene




From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Sunday, July 22, 2007 4:45 PM
To: Law & Religion issues for Law Academics
Subject: RE: EC & Compelling Interest


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" 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?

RE: EC & Compelling Interest

[Volokh, Eugene]

Rick:  You might well be right, but it's hard to tell without
some cases that test our sense of this, by coming out differently under
strict scrutiny than under per se invalidation.  It's hard to see a
compelling interest behind government holiday displays -- one can surely
argue that endorsement shouldn't be seen as implicating the
Establishment Clause, but it's harder to say that it does implicate it
but that it's just extraordinarily important to allow it.

Eugene




From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Sunday, July 22, 2007 4:45 PM
To: Law & Religion issues for Law Academics
Subject: RE: EC & Compelling Interest


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.


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RE: EC & Compelling Interest

[Ed Brayton]

I've always thought that the "special situation" analysis was little
more than the Court admitting that they do not wish to go where logical
reasoning demands they go so they're arbitrarily declaring an exception
to the rule. I do think that Art's example is a good one; I don't have
any problem with military chaplains paid for by the government for that
reason. 
 
Ed Brayton
 
-Original Message-
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Rick Duncan
Sent: Sunday, July 22, 2007 8:32 PM
To: Law & Religion issues for Law Academics
Subject: Re: EC & Compelling Interest


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?







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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.


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