Re: Bowman v. U.S.
Art writes: "But it's hard for me to see how funding a scholarship for students who study X amounts to funding the student's speech about X, or about anything. The students aren't being paid to speak (unless, I suppose, their course of study is drama or rhetoric). Why is receiving a scholarship a form of private speech? Is receiving a tax refund a form of speech?" I guess I look at a college scholarship as govt facilitating students opportunity to receive educative speech from the college and major of their choosing (but providing that one major from a particular viewpoint is excluded). A college education consists of students listening to educative speech, reading books, speaking out in class discussions, writing papers, and generally engaging in a whole host of expressive activities at the core of free speech. What about a govt program funding free movie tickets to needy citizens but providing that the tickets could not be used to attend a movie that expressed an anti-war point of view? Or govt providing vouchers for needy citizens to purchase newspapers but providing that the voucher could not be used to purchase a newspaper that had an editorial position in favor of same-sex marriage? Or govt providing a tax credit for the purchase of books except books expressing a viewpoint supporting abortion rights? In all of these cases, Art, assume the citizen eligible for the free tickets, newspaper voucher, or tax credit walked into your office and asked you if they have a claim under the Free Sp Cl. What would you advise them? Cheers, Rick Duncan Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 "Democracy is two wolves and a lamb voting on what to have for lunch. Liberty is a well-armed lamb contesting the vote."--Ben Franklin (perhaps misattributed, but still worthy of Franklin) "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. --- On Mon, 5/4/09, artspit...@aol.com wrote: From: artspit...@aol.com Subject: Re: Bowman v. U.S. To: religionlaw@lists.ucla.edu Date: Monday, May 4, 2009, 8:59 PM Thanks for the compliment, Rick. I can see how funding a Department of X, or a Chair of X Studies, could be characterized as funding the speech of one or more professors about X. But it's hard for me to see how funding a scholarship for students who study X amounts to funding the student's speech about X, or about anything. The students aren't being paid to speak (unless, I suppose, their course of study is drama or rhetoric). Why is receiving a scholarship a form of private speech? Is receiving a tax refund a form of speech? Art In a message dated 5/4/09 11:41:55 PM, nebraskalawp...@yahoo.com writes: Art Spitzer asks some great questions: "I'm not sure where I come out on this, but does your position mean that if Big State U. sets up a Department of Peace Studies it also has to set up a Department of War Studies? If an alumnus donates money to create a chair for the study of democratic institutions, the university can't accept those funds unless it also finds funds for a chair for the study of totalitarian institutions? If there's a scholarship for a student majoring in dispute resolution, there must also be a scholarship for a student majoring in dispute fomentation? Why are these examples of private speech rather than of government subsidy for the speech (and only the speech) it wishes to promote?" I think that the govt can say whatever it wants to say when it is the speaker. Thus, the University of Nebraska can set up a Dept of Peace if that is what it wishes to do. Its curriculum is its own speech, so it can adopt a particular viewpoint if that is what it wishes to do. Moreover, the govt could probably fund a scholarship only for certain subjects (as opposed to certain viewpoints)--such as a scholarship for nursing majors or education majors. This would probably best be considered a non-public forum in which content restrictions are permitted, but viewpoint restrictions are prohibited. The problem in Davey was that Washington created a general scholarship covering all majors including theology majors and excluded only one viewpoint--devotional theology majors (those majoring in theology from a believing perspective as opposed to an agnostic perspective). This amounts to viewpoint discrimination in a forum for private educative speech--this is not a Rust govt speech case, it is more like a Rosenberger case in which govt is seeking to facilitate the private speech of citizens who have qualified for a generally available scholarship on the basis of objective characteristics (GPA and family income). Thus, viewpoint di
Re: Bowman v. U.S.
Thanks for the compliment, Rick. I can see how funding a Department of X, or a Chair of X Studies, could be characterized as funding the speech of one or more professors about X. But it's hard for me to see how funding a scholarship for students who study X amounts to funding the student's speech about X, or about anything. The students aren't being paid to speak (unless, I suppose, their course of study is drama or rhetoric). Why is receiving a scholarship a form of private speech? Is receiving a tax refund a form of speech? Art In a message dated 5/4/09 11:41:55 PM, nebraskalawp...@yahoo.com writes: > Art Spitzer asks some great questions: > > "I'm not sure where I come out on this, but does your position mean that > if Big State U. sets up a Department of Peace Studies it also has to set up > a Department of War Studies? If an alumnus donates money to create a chair > for the study of democratic institutions, the university can't accept > those funds unless it also finds funds for a chair for the study of > totalitarian institutions? If there's a scholarship for a student majoring > in dispute > resolution, there must also be a scholarship for a student majoring in > dispute fomentation? Why are these examples of private speech rather than of > government subsidy for the speech (and only the speech) it wishes to > promote?" > > > I think that the govt can say whatever it wants to say when it is the > speaker. Thus, the University of Nebraska can set up a Dept of Peace if that > is > what it wishes to do. Its curriculum is its own speech, so it can adopt a > particular viewpoint if that is what it wishes to do. > > Moreover, the govt could probably fund a scholarship only for certain > subjects (as opposed to certain viewpoints)--such as a scholarship for nursing > majors or education majors. This would probably best be considered a > non-public forum in which content restrictions are permitted, but viewpoint > restrictions are prohibited. > > The problem in Davey was that Washington created a general scholarship > covering all majors including theology majors and excluded only one > viewpoint--devotional theology majors (those majoring in theology from a > believing > perspective as opposed to an agnostic perspective). This amounts to viewpoint > discrimination in a forum for private educative speech--this is not a Rust > govt speech case, it is more like a Rosenberger case in which govt is > seeking to facilitate the private speech of citizens who have qualified for a > generally available scholarship on the basis of objective characteristics > (GPA and family income). Thus, viewpoint discrimination is forbidden. > > It is the clear viewpoint discrimination that make the hypos I pose seem > so clearly unconstitutional--a scholarship for all students except those > who major in gender studies from a feminist perspective, or except those who > major in economics from a socialist perspective. Would anyone on the list > uphold such viewpoint restrictions on scholarships? > > Rehnquist's unreasoned Fr Sp dictum in Davey, a Fr Ex case, should not > preclude the issue from being considered in a future case in which the Fr Sp > issue is part of the question presented. The test suites I propose make > Rehnquist's non-analysis in Davey cry out for full and fair reconsideration. > > > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > > > > > > > ___ > 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. > ** 2009 3 Free CREDIT SCORES: See Your 3 Credit Scores from All 3 Bureaus FREE! (http://pr.atwola.com/promoclk/100126575x1221797372x1201397989/aol?redir=https:%2F%2Fwww.freescore.com%2FOffers%2FStart%2FFreeCreditRepor tAndScore.aspx%3FID%3D91831F371F138345B53A153F49D4D872%26siteid%3De927580bf7 ) ___ 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: Teachers (private and private, high school and college), ministers, psychotherapists, and lawyers
Good questions, Eugene. Quick answers because I'm writing an exam. I have no problem viewing teaching as a First Amendment activity, but I don't think we can base that conclusion on the fact that it involves talking. My point was simply that we will draw different conclusions about whether and how the First Amendment protects an activity (that involves talking) based on various considerations. What those considerations are isn't that easy to answer. But the fact that teachers, doctors and members of the clergy all talk a lot doesn't tell me much about how government regulations of their activities should be evaluated under the free speech clause. When we get to sermons from the pulpit specifically, the problem with a free speech paradigm is that it doesn't only operate to protect the person preaching from the pulpit. The focus of free speech doctrine is to prevent the government from engaging in content and viewpoint discrimination. That means that treating the preacher from the pulpit differently (more or less favorably) than other speakers requires rigorous review. If you believe that there is nothing distinctive about the religious expressive activities that occur in a house of worship that warrants special constitutional consideration, then a free speech model works. But if you believe that there is something distinctive about these religious activities (and I do), then the equal treatment which underlies free speech doctrine is a significant problem. I think both of the religion clauses require religious activities (including some activities involving expression) to be treated differently than non-religious activities (including some activities involving expression) in some circumstances. If I'm wrong about that and free speech doctrine applies to all of these religious and non-religious activities, then we ought to be able to see the consequences of that determination. One consequence would be that religious exemptions and accommodations for religious activities with an expressive dimension to them would have to be justified under strict scrutiny review. Another consequence would be that government could fund religious proselytizing, worship, and associations in any situation in which it funds secular advocacy, activities and associations. Since I don't see that happening, I conclude that the idea that the regulation and funding of religious expressive activities should always be evaluated under free speech doctrine doesn't work -- at least it doesn't work yet. It doesn't explain how the courts decide cases or how government treats religion. Normatively, I also think it would be a bad idea. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene [vol...@law.ucla.edu] Sent: Monday, May 04, 2009 7:04 PM To: Law & Religion issues for Law Academics Subject: Teachers (private and private, high school and college), ministers, psychotherapists, and lawyers Alan: I'm a bit puzzled here. First, is there really much in common between teachers (at least what they say in the classroom, as opposed to one-on-one career counseling or some such) and doctors or psychotherapists? If teachers are to be treated as similar to doctors and psychotherapists, then presumably the government would have vast authority not only over public education and publicly-funded private education, but purely privately funded private education as well, yes? I would have thought that professional-client speech restrictions, whatever First Amendment problems they might provide, are at least separate from the mainstream of First Amendment doctrine, and the speech of teachers is well within that mainstream (though subject to restriction in some measure when the teachers are government employees). Am I mistaken on that? Second, why is "analyzing regulations of" "sermons from the pulpit" "under a free speech paradigm" not "going to work"? Even if ministers have extra rights under the Free Exercise Clause (which I doubt), surely they have Free Speech Clause rights, and rights that are the same as those of other speakers, no? Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan > Sent: Monday, May 04, 2009 5:03 PM > To: hamilto...@aol.com; Law & Religion issues for LawAcademics > Subject: RE: Bowman v. U.S. > > Marci has to be right here. Deciding what is speech for first amendment purposes > has to involve more than just the fact that an activity involves a lot of talking. > Sermons from the pulpit are talking, so is the practice of psychotherapy, most of > what lawyers do, and a lot of what doctors do. Analyzing regulations of all these > activities under a free speech paradigm isn't going to work. > > Alan > > -Original Message- > From: religionlaw-boun
Re: Bowman v. U.S.
Art Spitzer asks some great questions: "I'm not sure where I come out on this, but does your position mean that if Big State U. sets up a Department of Peace Studies it also has to set up a Department of War Studies? If an alumnus donates money to create a chair for the study of democratic institutions, the university can't accept those funds unless it also finds funds for a chair for the study of totalitarian institutions? If there's a scholarship for a student majoring in dispute resolution, there must also be a scholarship for a student majoring in dispute fomentation? Why are these examples of private speech rather than of government subsidy for the speech (and only the speech) it wishes to promote?" I think that the govt can say whatever it wants to say when it is the speaker. Thus, the University of Nebraska can set up a Dept of Peace if that is what it wishes to do. Its curriculum is its own speech, so it can adopt a particular viewpoint if that is what it wishes to do. Moreover, the govt could probably fund a scholarship only for certain subjects (as opposed to certain viewpoints)--such as a scholarship for nursing majors or education majors. This would probably best be considered a non-public forum in which content restrictions are permitted, but viewpoint restrictions are prohibited. The problem in Davey was that Washington created a general scholarship covering all majors including theology majors and excluded only one viewpoint--devotional theology majors (those majoring in theology from a believing perspective as opposed to an agnostic perspective). This amounts to viewpoint discrimination in a forum for private educative speech--this is not a Rust govt speech case, it is more like a Rosenberger case in which govt is seeking to facilitate the private speech of citizens who have qualified for a generally available scholarship on the basis of objective characteristics (GPA and family income). Thus, viewpoint discrimination is forbidden. It is the clear viewpoint discrimination that make the hypos I pose seem so clearly unconstitutional--a scholarship for all students except those who major in gender studies from a feminist perspective, or except those who major in economics from a socialist perspective. Would anyone on the list uphold such viewpoint restrictions on scholarships? Rehnquist's unreasoned Fr Sp dictum in Davey, a Fr Ex case, should not preclude the issue from being considered in a future case in which the Fr Sp issue is part of the question presented. The test suites I propose make Rehnquist's non-analysis in Davey cry out for full and fair reconsideration. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ 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.
Teachers (private and private, high school and college), ministers, psychotherapists, and lawyers
Alan: I'm a bit puzzled here. First, is there really much in common between teachers (at least what they say in the classroom, as opposed to one-on-one career counseling or some such) and doctors or psychotherapists? If teachers are to be treated as similar to doctors and psychotherapists, then presumably the government would have vast authority not only over public education and publicly-funded private education, but purely privately funded private education as well, yes? I would have thought that professional-client speech restrictions, whatever First Amendment problems they might provide, are at least separate from the mainstream of First Amendment doctrine, and the speech of teachers is well within that mainstream (though subject to restriction in some measure when the teachers are government employees). Am I mistaken on that? Second, why is "analyzing regulations of" "sermons from the pulpit" "under a free speech paradigm" not "going to work"? Even if ministers have extra rights under the Free Exercise Clause (which I doubt), surely they have Free Speech Clause rights, and rights that are the same as those of other speakers, no? Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan > Sent: Monday, May 04, 2009 5:03 PM > To: hamilto...@aol.com; Law & Religion issues for LawAcademics > Subject: RE: Bowman v. U.S. > > Marci has to be right here. Deciding what is speech for first amendment purposes > has to involve more than just the fact that an activity involves a lot of talking. > Sermons from the pulpit are talking, so is the practice of psychotherapy, most of > what lawyers do, and a lot of what doctors do. Analyzing regulations of all these > activities under a free speech paradigm isn't going to work. > > Alan > > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com > Sent: Monday, May 04, 2009 4:51 PM > To: Law & Religion issues for Law Academics > Subject: Re: Bowman v. U.S. > > While speech is involved in the classroom, career preparation is more involved > than just speech. The state is not simply handing out funds for the sheer joy of > learning or enriching discourse. The state funding of ministers or rabbis for that > matter is a direct and knowing benefit to religious institutions. That is different > from the abstract treatment of learning as nothing but a discourse of speech. > Marci > > --Original Message-- > From: Volokh, Eugene > Sender: religionlaw-boun...@lists.ucla.edu > To: Law & Religion issues for Law Academics > ReplyTo: Law & Religion issues for Law Academics > Sent: May 4, 2009 7:41 PM > Subject: RE: Bowman v. U.S. > > What exactly is it about government-funded education directed at > future careers that keeps it from being "pure speech"? It presumably > wouldn't just be the government funding, since that was at issue in > Rosenberger as well. I take it the theory must be that "education" is > somehow more than just "pure speech," in constitutionally significant > ways. But why, especially when we're talking about education that > basically just involves talking, rather than science labs, football > games, and the like? > > Marci Hamilton writes: > > > In any event, this is not pure speech -- it is government funding > education directed > > at future careers. > > ___ > 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. > > > > > Sent from my Verizon Wireless BlackBerry > ___ > 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
RE: Bowman v. U.S.
I'm still not sure what it is that makes classroom speech "more" "than just speech" for First Amendment purposes. One suggestion in the following is the state's instrumental motive in funding the speech -- but that's about the state's motive, not about whether classroom teaching is or is not speech. Beyond this, say that the situation involved not restriction on religious speech but on, say, feminist speech or anti-war speech or environmentalist speech or what have you. Would we say that it's OK for the government to, for instance, refuse to allow federal funds to any programs that teach pacifism or feminism or environmentalism, on the grounds that classroom teaching is somehow more than just speech? Another suggestion is that perhaps career preparation is somehow less speech than, say, a liberal arts education. That's actually not in play in the Bowman regulation, since it's hardly limited to career preparation speech. But even in a case where someone is getting a vocational education, what exactly is the basis for saying that teaching someone how to be a minister, or how to be a schoolteacher, or how to be an artist, or how to be a lawyer is less constitutionally protected than other speech? This is very important, of course, since it directly affects the degree to which the government can impose condition on the wide range of benefits -- from tax exemptions to student loans to whatever else -- that it offers to private universities, private schools, and other institutions. That general free speech question arises far outside the context of religious proselytizing. If classroom speech in private (but indirectly government-funded) classrooms is somehow specially regulable for First Amendment purposes, either in general or when it involves career preparation, then that's a very important doctrine, the boundaries of which need to be made clear. Eugene > -Original Message- > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com > Sent: Monday, May 04, 2009 4:51 PM > To: Law & Religion issues for Law Academics > Subject: Re: Bowman v. U.S. > > While speech is involved in the classroom, career preparation is more involved > than just speech. The state is not simply handing out funds for the sheer joy of > learning or enriching discourse. The state funding of ministers or rabbis for that > matter is a direct and knowing benefit to religious institutions. That is different > from the abstract treatment of learning as nothing but a discourse of speech. > Marci > > --Original Message-- > From: Volokh, Eugene > Sender: religionlaw-boun...@lists.ucla.edu > To: Law & Religion issues for Law Academics > ReplyTo: Law & Religion issues for Law Academics > Sent: May 4, 2009 7:41 PM > Subject: RE: Bowman v. U.S. > > What exactly is it about government-funded education directed at > future careers that keeps it from being "pure speech"? It presumably > wouldn't just be the government funding, since that was at issue in > Rosenberger as well. I take it the theory must be that "education" is > somehow more than just "pure speech," in constitutionally significant > ways. But why, especially when we're talking about education that > basically just involves talking, rather than science labs, football > games, and the like? > > Marci Hamilton writes: > > > In any event, this is not pure speech -- it is government funding > education directed > > at future careers. > > ___ > 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. > > > > Sent from my Verizon Wireless BlackBerry > ___ > 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
Bowman v. U.S., from Chip Lupu
- Forwarded message from icl...@law.gwu.edu - Date: Mon, 4 May 2009 19:04:16 -0400 (EDT) From: "Ira (Chip) Lupu" Subject: Re: Bowman v. U.S. To: Douglas Laycock Cc: Rick Duncan Doug: I cannot post from home -- perhaps you will post this for me: If the Promise Scholarship program does not constitute a forum for speech, I think we can be quite sure that the DoD retirement credit program for public service likewise does not constitute such a forum. All the government has to do is satisfy minimum rationality standards with respect to what kinds of public service it will support. These are just not "free speech" issues. And I believe I already did respond to Rick's hypo about global warming and gay marriage -- if service to organizations that advocate in those ways is just too controversial, the state need not support that service (though of course it cannot outlaw the service). It's rather like those specialty license plates in Florida -- the state can approve one with an image of Jesus, and refuse to approve a plate with an image of A-Rod or Osama. Yes, such plates are government speech, fully subject to the Establishment Clause. And the retirement credit program too is a form of government speech, about what the government will support with its resources, as well as a spending program. Chip Original message >Date: Mon, 04 May 2009 18:45:59 -0400 >From: Douglas Laycock >Subject: Re: Bowman v. U.S. >To: religionlaw@lists.ucla.edu > > Rick's distinction is quite plausible as a matter of > first principle. But Davey is so clearly based on > Rust that I think we have to assume that Rehnquist > meant to reject Rick's distinction. Davey's view > seems to be that anything the government pays for is > sufficiently governmental that the government can > pick and choose what it wants to support. > > That principle has extreme implications, as Rick's > hypotheticals suggest. It must have a stopping > point somewhere, but the Court has not left itself > with many tools to find that point. > > Quoting Rick Duncan : > > > Well, Chip, Rust is about government speech as > part of government > > health care programs, not about a govt decision to > encourage govt > > workers to volunteer in private non-profit > activities except those > > with forbidden viewpoints. If the govt counted all > volunteer > > activities "except volunteer activities for an > organization that > > promotes abortion rights"--in other words, > volunteering for pro-life > > groups counts but not for pro-choice groups--I > think this would > > constitute unconstitutional viewpoint > discrimination. > > > > In other words, in Bowman the govt is facilitating > private speech, > > not taking a speech position itself. > > > > So, Chip, how do you answer my Bowman hypo: > > > > How would you all analyze the Free Speech Clause > issue in a case that > > was like Bowman except the exclusion covered > "participation in > > activities of schools or organizations teaching or > advocating about > > the need to reduce global warming or about > marriage from a gay rights > > perspective?" > > > > 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? > > > > Cheers, Rick > > > > > > Rick Duncan > > Welpton Professor of Law > > University of Nebraska College of Law > > Lincoln, NE 68583-0902 > > > > > > > > > > --- On Mon, 5/4/09, Ira (Chip) Lupu >wrote: > > > > From: Ira (Chip) Lupu > > Subject: Re: Bowman v. U.S. > > To: "Law & Religion issues for Law Academics" > > > Date: Monday, May 4, 2009, 1:14 PM > > > > 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
RE: Bowman v. U.S.
Marci has to be right here. Deciding what is speech for first amendment purposes has to involve more than just the fact that an activity involves a lot of talking. Sermons from the pulpit are talking, so is the practice of psychotherapy, most of what lawyers do, and a lot of what doctors do. Analyzing regulations of all these activities under a free speech paradigm isn't going to work. Alan -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com Sent: Monday, May 04, 2009 4:51 PM To: Law & Religion issues for Law Academics Subject: Re: Bowman v. U.S. While speech is involved in the classroom, career preparation is more involved than just speech. The state is not simply handing out funds for the sheer joy of learning or enriching discourse. The state funding of ministers or rabbis for that matter is a direct and knowing benefit to religious institutions. That is different from the abstract treatment of learning as nothing but a discourse of speech. Marci --Original Message-- From: Volokh, Eugene Sender: religionlaw-boun...@lists.ucla.edu To: Law & Religion issues for Law Academics ReplyTo: Law & Religion issues for Law Academics Sent: May 4, 2009 7:41 PM Subject: RE: Bowman v. U.S. What exactly is it about government-funded education directed at future careers that keeps it from being "pure speech"? It presumably wouldn't just be the government funding, since that was at issue in Rosenberger as well. I take it the theory must be that "education" is somehow more than just "pure speech," in constitutionally significant ways. But why, especially when we're talking about education that basically just involves talking, rather than science labs, football games, and the like? Marci Hamilton writes: > In any event, this is not pure speech -- it is government funding education directed > at future careers. ___ 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. Sent from my Verizon Wireless BlackBerry ___ 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.
Re: Bowman v. U.S.
While speech is involved in the classroom, career preparation is more involved than just speech. The state is not simply handing out funds for the sheer joy of learning or enriching discourse. The state funding of ministers or rabbis for that matter is a direct and knowing benefit to religious institutions. That is different from the abstract treatment of learning as nothing but a discourse of speech. Marci --Original Message-- From: Volokh, Eugene Sender: religionlaw-boun...@lists.ucla.edu To: Law & Religion issues for Law Academics ReplyTo: Law & Religion issues for Law Academics Sent: May 4, 2009 7:41 PM Subject: RE: Bowman v. U.S. What exactly is it about government-funded education directed at future careers that keeps it from being "pure speech"? It presumably wouldn't just be the government funding, since that was at issue in Rosenberger as well. I take it the theory must be that "education" is somehow more than just "pure speech," in constitutionally significant ways. But why, especially when we're talking about education that basically just involves talking, rather than science labs, football games, and the like? Marci Hamilton writes: > In any event, this is not pure speech -- it is government funding education directed > at future careers. ___ 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. Sent from my Verizon Wireless BlackBerry ___ 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: Bowman v. U.S.
What exactly is it about government-funded education directed at future careers that keeps it from being "pure speech"? It presumably wouldn't just be the government funding, since that was at issue in Rosenberger as well. I take it the theory must be that "education" is somehow more than just "pure speech," in constitutionally significant ways. But why, especially when we're talking about education that basically just involves talking, rather than science labs, football games, and the like? Marci Hamilton writes: > In any event, this is not pure speech -- it is government funding education directed > at future careers. ___ 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: Bowman v. U.S.
I disagree with Rick's analysis as well. The decision rested in no small part on Establishment Clause values with a long historical pedigree starting with James Madison. Government funding of the education of ministers is as close to establishment of religion as you can get short of the sorts of establishments in place during the founding era. It would have been ahistorical to have decided the case purely on free speech grounds. In any event, this is not pure speech -- it is government funding education directed at future careers. That was not the issue in either Rust or Rosenberger, where speech was at least arguably a major element of the policy challenged. Rick is sounding like the movement that would define away the Establishment Clause by making every potential disestablishment case an individual rights case (whether free exercise or speech). Rosenberger was a 5 to 4 decision that divided on that fault line -- with the majority speaking in speech terms and the dissent in est cl terms. The closeness of that decision and the preceding est cl case law combined with the history should have made Davey a toss-up and not the slam dunk some seem to think it should have been. This relates to the orthodoxy point I made yesterday. Marci Sent from my Verizon Wireless BlackBerry -Original Message- From: Rick Duncan Date: Mon, 4 May 2009 16:13:38 To: Law & Religion issues for Law Academics Subject: Re: Bowman v. U.S. ___ 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.
Re: Bowman v. U.S.
In a message dated 5/4/09 7:14:29 PM, nebraskalawp...@yahoo.com writes: > no one seems to like the answer that a scholarship exclusion for students > majoring in gender studies from a feminist perspective does not even > trigger serious scrutiny under the Free Sp Cl. > I'm not sure where I come out on this, but does your position mean that if Big State U. sets up a Department of Peace Studies it also has to set up a Department of War Studies? If an alumnus donates money to create a chair for the study of democratic institutions, the university can't accept those funds unless it also finds funds for a chair for the study of totalitarian institutions? If there's a scholarship for a student majoring in dispute resolution, there must also be a scholarship for a student majoring in dispute fomentation?Why are these examples of private speech rather than of government subsidy for the speech (and only the speech) it wishes to promote? Art Spitzer (employed by but not speaking for the ACLU) ** 2009 3 Free CREDIT SCORES: See Your 3 Credit Scores from All 3 Bureaus FREE! (http://pr.atwola.com/promoclk/100126575x1221797372x1201397989/aol?redir=https:%2F %2Fwww.freescore.com%2FOffers%2FStart%2FFreeCreditReportAndScore.aspx%3FID%3 D91831F371F138345B53A153F49D4D872%26siteid%3De927580bf7) ___ 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: Bowman v. U.S.
But Doug, Rehnquist's dictum was completely unreasoned. He merely asserted that a scholarship program is not a speech forum in a case that presented only Free Exercise questions. Why not? Why is the scholarship program closer to Rust than to Rosenberger? Rehnquist doesn't even hint at an answer. Thus, if the facts of Davey were re-litigated tomorrow, and the Free Sp issue were clearly before the Ct, it is almost a case of first impression. The dictum in Davey doesn't change the fact that the Ct has never explained why viewpoint restrictions in scholarships do not trigger serious Free Sp scrutiny. So my hypos force the issue; and no one seems to like the answer that a scholarship exclusion for students majoring in gender studies from a feminist perspective does not even trigger serious scrutiny under the Free Sp Cl. It ought to. And if the case came before the Ct, Davey would not preclude the issue. Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 ___ 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: Bowman v. U.S.
Rick's distinction is quite plausible as a matter of first principle. But Davey is so clearly based on Rust that I think we have to assume that Rehnquist meant to reject Rick's distinction. Davey's view seems to be that anything the government pays for is sufficiently governmental that the government can pick and choose what it wants to support. That principle has extreme implications, as Rick's hypotheticals suggest. It must have a stopping point somewhere, but the Court has not left itself with many tools to find that point. Quoting Rick Duncan : > Well, Chip, Rust is about government speech as part of government > health care programs, not about a govt decision to encourage govt > workers to volunteer in private non-profit activities except those > with forbidden viewpoints. If the govt counted all volunteer > activities "except volunteer activities for an organization that > promotes abortion rights"--in other words, volunteering for pro-life > groups counts but not for pro-choice groups--I think this would > constitute unconstitutional viewpoint discrimination. > > In other words, in Bowman the govt is facilitating private speech, > not taking a speech position itself. > > So, Chip, how do you answer my Bowman hypo: > > How would you all analyze the Free Speech Clause issue in a case that > was like Bowman except the exclusion covered "participation in > activities of schools or organizations teaching or advocating about > the need to reduce global warming or about marriage from a gay rights > perspective?" > > 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? > > Cheers, Rick > > > Rick Duncan > Welpton Professor of Law > University of Nebraska College of Law > Lincoln, NE 68583-0902 > > > > > --- On Mon, 5/4/09, Ira (Chip) Lupu wrote: > > From: Ira (Chip) Lupu > Subject: Re: Bowman v. U.S. > To: "Law & Religion issues for Law Academics" > Date: Monday, May 4, 2009, 1:14 PM > > 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 >> Subject: Re: Bowman v. U.S. >> To: Law & Religion issues for Law Academics >> >> 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? >>
Re: Bowman v. U.S.
Well, Chip, Rust is about government speech as part of government health care programs, not about a govt decision to encourage govt workers to volunteer in private non-profit activities except those with forbidden viewpoints. If the govt counted all volunteer activities "except volunteer activities for an organization that promotes abortion rights"--in other words, volunteering for pro-life groups counts but not for pro-choice groups--I think this would constitute unconstitutional viewpoint discrimination. In other words, in Bowman the govt is facilitating private speech, not taking a speech position itself. So, Chip, how do you answer my Bowman hypo: How would you all analyze the Free Speech Clause issue in a case that was like Bowman except the exclusion covered "participation in activities of schools or organizations teaching or advocating about the need to reduce global warming or about marriage from a gay rights perspective?" 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? Cheers, Rick Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 --- On Mon, 5/4/09, Ira (Chip) Lupu wrote: From: Ira (Chip) Lupu Subject: Re: Bowman v. U.S. To: "Law & Religion issues for Law Academics" Date: Monday, May 4, 2009, 1:14 PM 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 >Subject: Re: Bowman v. U.S. >To: Law & Religion issues for Law Academics > >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. >
davey and Viewpoint-Discriminatory Scholarships
Since we are talking about Davey and free speech--one of my favorite subjects to teach and think about--let's consider some different versions of the Promise Scholarship. What about a scholarship that covered all majors except: 1. "gender studies from a feminist perspective" Violate Fr Sp Cl? 2. "economics from a socialist perspective" Same question? 3. "Theology that rejects the divinity of Christ" Does this violate the Fr Sp Cl? Does it constitute denominational discrimination under the EC? If so, than isn't this also true of a scholarship that distinguishes between devotional theology majors and non-devotional theology majors? Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902. ___ 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: Bowman v. U.S.
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 >Subject: Re: Bowman v. U.S. >To: Law & Religion issues for Law Academics > >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 >wrote: > > From: Volokh, Eugene > Subject: Bowman v. U.S. > To: "Law & Religion issues for Law Academics" > > 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
Re: Bowman v. U.S.
How would you all analyze the Free Speech Clause issue in a case that was like Bowman except the exclusion covered "participation in activities of schools or organizations teaching or advocating about the need to reduce global warming or about marriage from a gay rights perspective?" 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 wrote: From: Volokh, Eugene Subject: Bowman v. U.S. To: "Law & Religion issues for Law Academics" 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.
Re: Bowman v. U.S.
Couple of quick points re Locke v. Davey: 1. The burden here is much more substantial than in Davey--remember, Joshua Davey could have simply dropped his major for 2 years and used his full scholarship to take the exact same couses at the same college. To the extent that Davey turned on the Ct's finding of only a minor burden on free ex, this case seems to be a much stronger one for the Pl. 2. The Free Speech issue was not before the Ct in Davey (the Ct granted cert only on the Free Ex issue). Thus, Rehnquist's unsupported conclusory assertion in a brief footnote in Davey, that a scholarship did not create a forum for speech, was dictum and completely unreasoned dictum at that. I have written about this at some length: Duncan, Locked Out: Locke v. Davey and the Broken Promise of Equal Access, 8 U. Pa. J. Const. L. 699 (2006) Rick Duncan Welpton Professor of Law University of Nebraska College of Law Lincoln, NE 68583-0902 --- On Mon, 5/4/09, Ira (Chip) Lupu wrote: From: Ira (Chip) Lupu Subject: Re: Bowman v. U.S. To: "Law & Religion issues for Law Academics" Date: Monday, May 4, 2009, 9:55 AM Bob Tuttle and I prepared an extended analysis (for the Roundtable on Religion and Social Welfare Policy) on Bowman v. U.S. at the time of the district court's decision in the case. The government's position seemed quite out of line with the GWB Faith-Based Initiative, but the outcome does seem correct under Locke v. Davey. And this is a program for retirement credit for former members of the Armed Forces -- hard to see any better free speech claim here than there was in Locke (where the claim was summarily rejected). Our analysis is here: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=62 Chip Original message >Date: Mon, 4 May 2009 09:41:16 -0700 >From: "Volokh, Eugene" >Subject: Bowman v. U.S. >To: "Law & Religion issues for Law Academics" > >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. 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. ___ 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: Bowman v. U.S.
One problem, of course, is that if a free speech analysis is employed, it will cut both ways. Private organizations focusing on environmental, social justice, or civil liberty issues can't be treated more favorably than religious institutions. But they also can't be treated less favorably than religious institutions. Eugene, to his credit, has always adopted a formal equality position in this area that would permit the free speech clause to be used to prohibit religious accommodations and exemptions that discriminated in favor of religious institutions as well as to prohibit government action that discriminated against religious institutions. (I hope that I am describing your position correctly, Eugene. My apologies if I got it wrong.) I don't see a lot of evidence that the government or the courts are ready to adopt that framework across the board. Alan Brownstein -Original Message- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, May 04, 2009 9:41 AM To: Law & Religion issues for Law Academics Subject: Bowman v. U.S. 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.
Re: Bowman v. U.S.
Bob Tuttle and I prepared an extended analysis (for the Roundtable on Religion and Social Welfare Policy) on Bowman v. U.S. at the time of the district court's decision in the case. The government's position seemed quite out of line with the GWB Faith-Based Initiative, but the outcome does seem correct under Locke v. Davey. And this is a program for retirement credit for former members of the Armed Forces -- hard to see any better free speech claim here than there was in Locke (where the claim was summarily rejected). Our analysis is here: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=62 Chip Original message >Date: Mon, 4 May 2009 09:41:16 -0700 >From: "Volokh, Eugene" >Subject: Bowman v. U.S. >To: "Law & Religion issues for Law Academics" > >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. 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.
Bowman v. U.S.
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.
