RE: Florida Voucher Decision
-to-aid cases. It has been either explicitly or implicitly rejected there; and I think that it should be rejected in the aid context too (because in both cases, if there is a federal principle of nondiscrimination -- whether free speech or free exercise -- the state provision is itself flawed and should not be given effect to bind the government). Alan, I would be interested in hearing more about precisely why the distinctions you raise would be relevant to the logic of this must satisfy both provisions argument. _ From: Alan Brownstein [mailto:[EMAIL PROTECTED]] Sent: Sat 11/13/2004 5:35 PM To: Berg, Thomas C.; Law Religion issues for Law Academics Subject: RE: Florida Voucher Decision I think Tom may be half right here. First, Tom's concerns are only relevant if the Florida Court is wrong about the free exercise issue regarding discrimination in subsidies between religious and non-religious institutions. (If the Florida Court is right about the free exercise issue, this case isn't going to have any application to forum cases, because it is completely clear that you can not discriminatorily deny access to religious speech in a public or nonpublic forum.) If the Florida courts are wrong and the free exercise clause of the First Amendment's prohibition of state discrimination against religion applies to funding schemes that exclude subsidies for religious schools, I can easily see a state supreme court holding that the Florida constitutional provision is discriminatory and unconstitutional on its face and can not be enforced to invalidate any Florida law. The Florida legislature would be free to repeal a voucher program once it learned that by virtue of federal constitutional mandate the program had to include religious schools. But I don't see how a facially invalid state constitutional provision could force it to do so. I think Tom's point is well taken here. On the other hand, I think a state supreme court could try to give the state constitutional provision a construction that withstands federal constitutional review and is faithful to the values expressed in the state constitution. That could justify striking the entire voucher scheme down on the ground that no such subsidy scheme could satisfy both constitutional guaranttees. Thus, I think Marty is correct that if the Florida Court is wrong about the First Amendment, what is at issue here may primarily be a matter of state constitutional law. I would look at the issue this way. If you sever the funding of religious schools to comply with the Florida constitution, you violate the federal constitution? If you don't sever the funding of religious schools and strike the program down under the Florida Constitution because it involves funding religious schools, I also think you violate the federal constitution. It is still a discriminatory provision that requires striking the program down. The only way you avoid violating the federal constitution is by interpreting the Florida Constitution to prohibit all funding programs for which religious institutions might be eligible recipients of state support. In essence, the Florida provision would be interpreted to mandate that whenever the state legislature is required by federal constitutional law to either fund religious institutions as part of a neutral subsidy program or cancel the program in its entirety, the legislature must cancel the program. If that is right, (and I concede it is a real stretch), it is the interpretation of the Florida Constitution that does most of the heavy lifting in this case -- the lack of severability is not all that important. Tom. Do you think that a state constitutional provision that said this explicitly would violate the free exercise clause? Further, unlike Tom, I do not think such a decision would necessarily effect equal access cases relating to discrimination against religious speech in public or nonpublic forums. I think the religion clauses and the free speech clause serve very different purposes and are doctrinally distinct in a variety of ways. Accordingly, I do not think one can simply assume that the termination of a voucher program including private religious schools in order to satisfy both federal and state constitutional guarantees relating to free exercise and establishment clause concerns requires or is equivalent to the closure of a forum including religious _expression_ to satisfy free speech mandates. Maybe there is an argument why these two doctrinal frameworks have to track each other. I'm not saying that this argument can't be made, just that Tom has not made it yet. Alan Brownstein UC Davis ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private
RE: Florida Voucher Decision
treatment by requiring the closure of the entire voucher program. Perhaps Davey will ultimately be read to reject the challenge, but courts can't avoid deciding it. Tom Berg University of St. Thomas (Minnesota) _ From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Sat 11/13/2004 8:48 AM To: Law Religion issues for Law Academics Subject: Re: Florida Voucher Decision Once again, what I find most odd about this case is that, as a result of the trial court's injunction, it does not involve any discrimination against religious schools. Assume, for the sake of argument, that the majority is wrong in holding that Davey controls here, and that, in fact, it would violate the Free Exercise Clause for Florida to prevent religious schools from receiving vouchers that are available for use in nonreligious private schools. Even so, the Florida Constitution, as construed by the trial court and by the majority of the court of appeals, does not require discrimination against religion. It merely requires that no aid be diverted to religious schools. The trial court honored this injunction without discriminating against religion by ruling that the entire private-school voucher program was invalid, as to religious and secular private schools alike. Judge Wolf concludes that this was wrong, and that at the very least the statute should be upheld as to nonreligious schools. But the Governor did not argue in favor of severability, and the majority concludes (fn. 4) -- not without reason -- that we cannot say that the Florida Legislature . . . would have adopted the OSP without vouchers being provided to sectarian schools. What the trial court did, arguably, was to honor both constitutional commands. The Florida Constitution (arguably) says no aid to religious schools. The Free Exercise Clause (argubaly) says no discrimination against religious private schools. Thus, the only regime that is constitutional is one in which no aid is given to any private schools. Can there be a Free Exercise violation in such circumstances? Is the question analogous to Palmer v. Thompson? The dissent says that facial neutrality is not constitutionally sufficient if the exclusion of all private schools is motivated by a desire to exclude religious schools. In support of this proposition, the dissent cites two district court decisions -- one holding that a government cannot eliminate a public forum to avoid a requirement of viewpoint neutrality, and the other holding that a government canmot eliminate a public forum in order to avoid requirements of race-neutrality. The former holding is simply wrong as a matter of Free Speech doctrine, I believe; and the latter is in considerable tension with Palmer, if I'm not mistaken. I suppose that if the burden of the injunction falls overwhelmingly on religious schools, I suppose there might be an argument under Lukumi that facial neutrality is not sufficient. (Such an argument would be potentially perilous, however. If the fact that most private schools are religious can be used as proof that an exclusion of vouchers to such schools is impermissibly neutral despite its general applicability, then wouldn't the legislature's initial decision to permit vouchers to be used at private schools likewise betray a constitutionally dubious purpose to support religious schools?) Does anyone on the list think that the facially neutral trial court injunction violates the Free Exercise Clause? - Original Message - From: Rick Garnett mailto:[EMAIL PROTECTED] [EMAIL PROTECTED] To: Law Religion issues for Law Academics mailto:[EMAIL PROTECTED] [EMAIL PROTECTED] Sent: Friday, November 12, 2004 5:31 PM Subject: Re: Florida Voucher Decision Dear all, Thanks very much to Michael for forwarding the Florida court's decision. I am not surprised by the result, but I am surprised by (what I regard as) the court's failure meaningfully to confront the original social meaning and purpose of Florida's no-aid provision and other similar provisions. For example: In footnote 9, the Florida court states that [w]hether the Blaine-era amendments are based on religious bigotry is a disputed and controversial issue among historians and legal scholars and that [some] commentators argue . . . that anti-Catholic bigotry did not play a significant role in the development of Blaine-era no-aid provisions in state constitutions. (True enough). For the latter proposition, though, the court cites only (1) a detailed article on the Indiana no-aid provision, which observed that, in 1850, Indiana had very few Catholics and concluded that the Indiana provision was neither nativist nor anti-Catholic; and (2) Chief Justice Rehnquist's observation in Davey that the provision at issue in that case had not been connected by Davey to the Blaine Amendment. But does Indiana's situation in 1850 -- even assuming that the article's author is correct -- really support
Re: Florida Voucher Decision
It is lawful to discriminate for and against religions. Indeed the Constitution mandates EXACTLY that. The government can establish lots of things (or seek to), e.g., patriotism, individualism, tolerance. But it cannot establish religion. It therefore must discriminate in what it chooses to establish on the basis, at least in part, of religion. The government can ban all sorts of behavior and can zone property in all sorts of ways. But it cannot zone in such a way as to exclude all religious buildings or activity. It could prohibit all multiple-unit dwellings. Or all heavy industry. Or all educational institutions. But it can't do that with respect to religion. This is discrimination for religion. Discrimination is not a sufficiently robust concept to handle the inevitable conflicts and nuances involved in religious cases. The principles of non-discrimination and equal treatment have their place in constitutional religious freedom analysis, but they are not sufficient. Nor is accommodation. Nor is coercion. Nor is separation. The tension exposed in no-taxpayer support v. non-discrimination in the voucher cases can be resolved either by favoring one theory over the other a la the Rosenberger case (favoring equal treatment over no funding) or through some other balancing approach which forthrightly recognizes the conflict and chooses not to go one way or the other on the basis of selecting which principle has priority, but rather choosing, in the Justice O'Connor mode, a nuanced, case by case analysis in which such principles play a part in the decision. Of course this does not give us bright-line tests, which in itself creates problems. But this, it seems to me, is the very nature of the beast and it cannot be tamed or beaten out of it no matter how many of us try to dance on the head of that metaphorical pin of logical consistency. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar The only things truly worth doing cannot be accomplished in a single lifetime. Prof. Goler Teal Butcher, after Reinhold Neibuhr ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Florida Voucher Decision
If I understandTom's post correctly, he agrees with the majority in the Florida casethat there is no FreeExercise violation here because Florida (i.e., the state courts, construing the legislature's intent as to "severability") is nottreating religious schools unfavorably vis-a-vis otherprivate schools. And that was the principal question that I was asking -- i.e., could the university in Widmar have opted to close all classrooms to student groups once it learned that religious groups would have to be included?Tom says "yes." But the dissent in the Florida case says "no"! -- that if the closure was motivated by the objective of excluding religious groups, then the facially neutral closure itself violates the Free Exercise Clause. I think that's probably wrong, and it appears Tom agrees. If possible, I'd like to hear from any listmembers who disagree with this conclusion, before the discussion veers away to the very interesting subsidiary question that Tom addresses. The next question -- the one Tom's e-mail principally addresses -- is this: If (i) the Free Exercise Clause would prohibit discrimination against religious schools (which is contrary to the Florida's court's holding, but assume arguendo that the dissent is correct to distinguish Davey), and (ii) the FloridaConstitutionprohibits use of vouchers in religious schools, could the Florida Legislatureignore the Florida Constitution and enact a plan that permits vouchers to be used at religious and nonreligious schools alike? Tom is absolutely correct that nothing in the federal Constitution would prohibit the legislature from doing so. In Tom's words, the state has the "choice" between all or nothing. The problem, as I see it, is that the state has chosen --the State Constitution appears to compel the answer of "nothing." Tom suggests that the effect of the federal constitutional command is not only to require nondiscrimination, but also to, in effect, erase, or invalidate, the "flawed" state constitutional provision, or, in any event, to make it "not binding" on lower-level state decisionmakers. That's a very interesting jurisprudential question, I think. Of course, we all know that when a court declares a statute (or state constitutional provision) "invalid," it does not mean that the provision magically disappears, or is thereby repealed. What it means is that the courts will enjoin any application of the statute that violates the federal constitutional norm. If, therefore, the state constitution required that religious schools be "singled out" for disfavored treatment, as Tom suggests, then of course the lower-level state actors could never apply that provision in a manner consistent with a federal rule that such discrimination is unconstitutional -- because any such application would be enjoined. The difficulty with Tom's analysis, as I see it, is that the state constitutional norm here does not require religious schools to be singled out -- it merely requires that they not receive aid. The federal Constitution has not "invalidated" the refusal of Florida to give aid to religious schools -- Tom concedes that Florida need not do so as long as secular and religious schools alike. It has merely (that is to say, hypothetically, if the Florida court is wrong) prohibited discrimination. Therefore there is no conflict between the two constitutions, and the lower-level state actors must honor both. I genuinely do not know whether this is correct -- but I think that it is a question of state, not federal, law. This is essentially the conclusion that Van Alstyne reached in an analogous context in his "Thirty Pieces of Silver" article -- that if Congress offers the state funds only on a condition that the state do something that is independently barred by the state's own constitution, the state has no choice but to decline the federal funds. On the other hand, Lead/Deadwood suggests otherwise, and would probably be support for Tom's theory. - Original Message - From: "Berg, Thomas C." [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" [EMAIL PROTECTED] Sent: Saturday, November 13, 2004 11:03 AM Subject: RE: Florida Voucher Decision I haven't read the Florida decision yet; but I've heard such reasoning before. As Marty describes the reasoning, it is inconsistent with the premises and result of Widmar, and indeed of a vast number of other public-forum cases. In Widmar, the Missouri state constitutional principle singling out religious groups for exclusion (in the name of strict separation) was overridden by the federal constitutional right of equal access. The result was that the state university must *either* close its classrooms to student groups on a religion-neutral basis *or* allow the religious group to meet. Had the Wi
RE: Florida Voucher Decision
Steve Jamar writes: It is lawful to discriminate for and against religions. Indeed the Constitution mandates EXACTLY that. People keep saying things like this (cf., e.g., some recent posts by Mark Graber), but it strikes me as a vast overreading of the Constitutional text (and of the caselaw). Yes, the Establishment Clause discriminatorily prevents the government from establishing religion. The government may establish environmentalism or animal rights as the state's official ideology, but not Christianity. Fine. But why should we take the leap from that to the conclusion that the government must or even may discriminate among private speakers or private entities based on their religiosity? Likewise, the Free Exercise Clause discriminatorily protects religion against discrimination. The government may single out rich people, short people, or people who use marijuana for negative action; but it may not single out religious people. Fine. But why should we take the leap from that to the conclusion that the government must or even may discriminate in favor of religion in other ways? Certainly one can make normative arguments for why discrimination for or against religion more generally is proper. The arguments for why equal treatment of religion is proper are normative arguments, though I do think that they are buttressed by the text of the Constitution (since establishment of religion, in my view, requires singling out religion for special benefit, since ignoring something generally doesn't establish it, and since free exercise of religion means at least exercise of religion free of government penalties imposed because of your exercise of religion). But textual arguments for discrimination in favor of or against religion, based on supposed inferences from the Establishment Clause, strike me as quite unsound. Congress [or states] shall make no law respecting an establishment of religion simply doesn't mean that states are required to, or even allowed to, discriminate among private individuals or groups based on religiosity. (Arguments for government discrimination in favor of religion, based on the text of the Free Exercise Clause, are a bit more plausible; but even those are hardly dispositive.) If people want to make an argument that individuals' or groups' religious speech or religious practice deserves to be discriminated against, fine. But I see no basis for claiming that the constitutional text authorizes or mandates such discrimination. Eugene Steve Jamar continued: The government can establish lots of things (or seek to), e.g., patriotism, individualism, tolerance. But it cannot establish religion. It therefore must discriminate in what it chooses to establish on the basis, at least in part, of religion. The government can ban all sorts of behavior and can zone property in all sorts of ways. But it cannot zone in such a way as to exclude all religious buildings or activity. It could prohibit all multiple-unit dwellings. Or all heavy industry. Or all educational institutions. But it can't do that with respect to religion. This is discrimination for religion. Discrimination is not a sufficiently robust concept to handle the inevitable conflicts and nuances involved in religious cases. The principles of non-discrimination and equal treatment have their place in constitutional religious freedom analysis, but they are not sufficient. Nor is accommodation. Nor is coercion. Nor is separation. The tension exposed in no-taxpayer support v. non-discrimination in the voucher cases can be resolved either by favoring one theory over the other a la the Rosenberger case (favoring equal treatment over no funding) or through some other balancing approach which forthrightly recognizes the conflict and chooses not to go one way or the other on the basis of selecting which principle has priority, but rather choosing, in the Justice O'Connor mode, a nuanced, case by case analysis in which such principles play a part in the decision. Of course this does not give us bright-line tests, which in itself creates problems. But this, it seems to me, is the very nature of the beast and it cannot be tamed or beaten out of it no matter how many of us try to dance on the head of that metaphorical pin of logical consistency. Steve -- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar The only things truly worth doing cannot be accomplished in a single lifetime. Prof. Goler Teal Butcher, after Reinhold Neibuhr ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see
RE: Florida Voucher Decision
I'll let others opine on the specific question Marty asks. Since I'll be unable to post for a while this afternoon, let me just make one comment on the issue I raised, in response to Marty. It may be true, as Marty says, that the Florida constitutional provision doesn't require the singling out of religious schools for no aid -- it just requires that they not receive aid. But the provision unquestionably does single out religious schools for no aid: it forbids aid to them while not forbidding aid to nonreligious schools. In that sense, the provision is surely discriminatory, even if the state could also deny aid to other schools in order to produce an overall nondiscriminatory result. I don't see why a provision that is inherently discriminatory in this way should be given the effect of forcing the state's hand in this way. Marty, do you agree with my claim that if the Florida court's argument is right, it would not only require the invalidation of private-school vouchers, but also would require the closure of forums in many of the equal-access cases (all the ones where there was a general state or local rule above the individual-school level that forbade, or was interpreted to forbid, the use of classrooms for religious purposes) -- and that it could also require the closure of forums in many cases where the excluded perspective was not religious? In other words, do you agree that the Florida court's rationale could cut a very wide swath through the previous equal-access logic of accept the excluded group or close the forum altogether? Tom Berg _ From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Sat 11/13/2004 10:45 AM To: Law Religion issues for Law Academics Subject: Florida Voucher Decision If I understand Tom's post correctly, he agrees with the majority in the Florida case that there is no Free Exercise violation here because Florida (i.e., the state courts, construing the legislature's intent as to severability) is not treating religious schools unfavorably vis-a-vis other private schools. And that was the principal question that I was asking -- i.e., could the university in Widmar have opted to close all classrooms to student groups once it learned that religious groups would have to be included? Tom says yes. But the dissent in the Florida case says no! -- that if the closure was motivated by the objective of excluding religious groups, then the facially neutral closure itself violates the Free Exercise Clause. I think that's probably wrong, and it appears Tom agrees. If possible, I'd like to hear from any listmembers who disagree with this conclusion, before the discussion veers away to the very interesting subsidiary question that Tom addresses. The next question -- the one Tom's e-mail principally addresses -- is this: If (i) the Free Exercise Clause would prohibit discrimination against religious schools (which is contrary to the Florida's court's holding, but assume arguendo that the dissent is correct to distinguish Davey), and (ii) the Florida Constitution prohibits use of vouchers in religious schools, could the Florida Legislature ignore the Florida Constitution and enact a plan that permits vouchers to be used at religious and nonreligious schools alike? Tom is absolutely correct that nothing in the federal Constitution would prohibit the legislature from doing so. In Tom's words, the state has the choice between all or nothing. The problem, as I see it, is that the state has chosen -- the State Constitution appears to compel the answer of nothing. Tom suggests that the effect of the federal constitutional command is not only to require nondiscrimination, but also to, in effect, erase, or invalidate, the flawed state constitutional provision, or, in any event, to make it not binding on lower-level state decisionmakers. That's a very interesting jurisprudential question, I think. Of course, we all know that when a court declares a statute (or state constitutional provision) invalid, it does not mean that the provision magically disappears, or is thereby repealed. What it means is that the courts will enjoin any application of the statute that violates the federal constitutional norm. If, therefore, the state constitution required that religious schools be singled out for disfavored treatment, as Tom suggests, then of course the lower-level state actors could never apply that provision in a manner consistent with a federal rule that such discrimination is unconstitutional -- because any such application would be enjoined. The difficulty with Tom's analysis, as I see it, is that the state constitutional norm here does not require religious schools to be singled out -- it merely requires that they not receive aid. The federal Constitution has not invalidated the refusal of Florida to give aid to religious schools -- Tom concedes that Florida need not do so as long as secular and religious schools alike. It has merely (that is to say
Re: Florida Voucher Decision
I don't have time just now to respond to Tom's question. But I did want to make clear that the argument about which Tom is concerned is not the argument of the Florida court majority. The majority's argument is: 1. The Florida Constitution prohibits the use of vouchers in religiousschools. 2. The voucher statute is not severable as between secular and religious private schools, i.e., the Florida legislature would not have intended that vouchers could be used at secular schools if they cannot be used at religious schools. 3. Hence, the entire statute is invalid and enjoined, and vouchers may not be used at any private schools. 4. Because that injunction does not favor secular over religious private schools, it is facially and formally neutral, and therefore does not implicate Lukumi or the Free Exercise Clause. (The dissent takes issue with this conclusion; but as I understand Tom's earlier post, he agrees with me that the majority is probably correct.) 5. Even if there were discrimination against religious schools here -- i.e., even if the statute were severable, or the legislature were to enact a new statute permitting use of vouchers at private secular schools only -- that disparate treatment would be constitutional under Davey. I am interested in others' views on point No. 4. Tom's question, by contrast,assumes arguendo that point No. 5 came out the other way, and asks whether, in that case, a state court or legislature could permit the use of vouchers at all private schools, or whether, instead, the state constitution would require that the voucher plan be prohibited for all private schools, unless and until the state constitution is amended. In my view, that is a question of state law. - Original Message - From: "Berg, Thomas C." [EMAIL PROTECTED] To: "Law Religion issues for Law Academics" [EMAIL PROTECTED] Sent: Saturday, November 13, 2004 2:02 PM Subject: RE: Florida Voucher Decision I'll let others opine on the specific question Marty asks. Since I'll be unable to post for a while this afternoon, let me just make one comment on the issue I raised, in response to Marty. It may be true, as Marty says, that the Florida constitutional provision doesn't "require the singling out of religious schools" for no aid -- it just requires that they not receive aid. But the provision unquestionably does single out religious schools for no aid: it forbids aid to them while not forbidding aid to nonreligious schools. In that sense, the provision is surely discriminatory, even if the state could also deny aid to other schools in order to produce an overall nondiscriminatory result. I don't see why a provision that is inherently discriminatory in this way should be given the effect of forcing the state's hand in this way. Marty, do you agree with my claim that if the Florida court's argument is right, it would not only require the invalidation of private-school vouchers, but also would require the closure of forums in many of the equal-access cases (all the ones where there was a general state or local rule above the individual-school level that forbade, or was interpreted to forbid, the use of classrooms for religious purposes) -- and that it could also require the closure of forums in many cases where the excluded perspective was not religious? In other words, do you agree that the Florida court's rationale could cut a very wide swath through the previous equal-access logic of "accept the excluded group or close the forum altogether"? Tom Berg _ From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Sat 11/13/2004 10:45 AM To: Law Religion issues for Law Academics Subject: Florida Voucher Decision If I understand Tom's post correctly, he agrees with the majority in the Florida case that there is no Free Exercise violation here because Florida (i.e., the state courts, construing the legislature's intent as to "severability") is not treating religious schools unfavorably vis-a-vis other private schools. And that was the principal question that I was asking -- i.e., could the university in Widmar have opted to close all classrooms to student groups once it learned that religious groups would have to be included? Tom says "yes." But the dissent in the Florida case says "no"! -- that if the closure was motivated by the objective of excluding religious groups, then the facially neutral closure itself violates the Free Exercise Clause. I think that's probably wrong, and it appears Tom agrees. If possible, I'd like to hear from any listmembers who disagree with this conclusion, before the discussion veers away to the very interesting subsidiary question that Tom addresses. The next question -- the one Tom's e-mail principally addresses -- is this: If (i) the Free Exercise Clause would prohibit discrimination against religious schools (wh
RE: Florida Voucher Decision
of private-school vouchers, but also would require the closure of forums in many of the equal-access cases (all the ones where there was a general state or local rule above the individual-school level that forbade, or was interpreted to forbid, the use of classrooms for religious purposes) -- and that it could also require the closure of forums in many cases where the excluded perspective was not religious? In other words, do you agree that the Florida court's rationale could cut a very wide swath through the previous equal-access logic of accept the excluded group or close the forum altogether? Tom Berg _ From: Marty Lederman [mailto:[EMAIL PROTECTED] Sent: Sat 11/13/2004 10:45 AM To: Law Religion issues for Law Academics Subject: Florida Voucher Decision If I understand Tom's post correctly, he agrees with the majority in the Florida case that there is no Free Exercise violation here because Florida (i.e., the state courts, construing the legislature's intent as to severability) is not treating religious schools unfavorably vis-a-vis other private schools. And that was the principal question that I was asking -- i.e., could the university in Widmar have opted to close all classrooms to student groups once it learned that religious groups would have to be included? Tom says yes. But the dissent in the Florida case says no! -- that if the closure was motivated by the objective of excluding religious groups, then the facially neutral closure itself violates the Free Exercise Clause. I think that's probably wrong, and it appears Tom agrees. If possible, I'd like to hear from any listmembers who disagree with this conclusion, before the discussion veers away to the very interesting subsidiary question that Tom addresses. The next question -- the one Tom's e-mail principally addresses -- is this: If (i) the Free Exercise Clause would prohibit discrimination against religious schools (which is contrary to the Florida's court's holding, but assume arguendo that the dissent is correct to distinguish Davey), and (ii) the Florida Constitution prohibits use of vouchers in religious schools, could the Florida Legislature ignore the Florida Constitution and enact a plan that permits vouchers to be used at religious and nonreligious schools alike? Tom is absolutely correct that nothing in the federal Constitution would prohibit the legislature from doing so. In Tom's words, the state has the choice between all or nothing. The problem, as I see it, is that the state has chosen -- the State Constitution appears to compel the answer of nothing. Tom suggests that the effect of the federal constitutional command is not only to require nondiscrimination, but also to, in effect, erase, or invalidate, the flawed state constitutional provision, or, in any event, to make it not binding on lower-level state decisionmakers. That's a very interesting jurisprudential question, I think. Of course, we all know that when a court declares a statute (or state constitutional provision) invalid, it does not mean that the provision magically disappears, or is thereby repealed. What it means is that the courts will enjoin any application of the statute that violates the federal constitutional norm. If, therefore, the state constitution required that religious schools be singled out for disfavored treatment, as Tom suggests, then of course the lower-level state actors could never apply that provision in a manner consistent with a federal rule that such discrimination is unconstitutional -- because any such application would be enjoined. The difficulty with Tom's analysis, as I see it, is that the state constitutional norm here does not require religious schools to be singled out -- it merely requires that they not receive aid. The federal Constitution has not invalidated the refusal of Florida to give aid to religious schools -- Tom concedes that Florida need not do so as long as secular and religious schools alike. It has merely (that is to say, hypothetically, if the Florida court is wrong) prohibited discrimination. Therefore there is no conflict between the two constitutions, and the lower-level state actors must honor both. I genuinely do not know whether this is correct -- but I think that it is a question of state, not federal, law. This is essentially the conclusion that Van Alstyne reached in an analogous context in his Thirty Pieces of Silver article -- that if Congress offers the state funds only on a condition that the state do something that is independently barred by the state's own constitution, the state has no choice but to decline the federal funds. On the other hand, Lead/Deadwood suggests otherwise, and would probably be support for Tom's theory. - Original Message - From: Berg, Thomas C. mailto:[EMAIL PROTECTED] [EMAIL PROTECTED] To: Law
FWD: Florida voucher decision / Alan's question
Dear Alan -- I cannot post to the list. Would you mind forwarding this response (to you). Hope you are well . . . * * * Dear Alan (and colleagues), John Witte's Religion and the American Constitutional Experiment explores this possibility, I think. And, John Courtney Murray (S.J.) pressed a related argument w/r/t what the McCollum and Everson Courts claimed were the Madisonian roots (Memorial and Remonstrance, etc.) of the Establishment Clause in his 1949 essay, Law or Prepossessions? Best wishes, Rick ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others.
Re: Florida Voucher Decision
Dear all, Thanks very much to Michael for forwarding the Florida court's decision. I am not surprised by the result, but I am surprised by (what I regard as) the court's failure meaningfully to confront the original social meaning and purpose of Florida's no-aid provision and other similar provisions. For example: In footnote 9, the Florida court states that [w]hether the Blaine-era amendments are based on religious bigotry is a disputed and controversial issue among historians and legal scholars and that [some] commentators argue . . . that anti-Catholic bigotry did not play a significant role in the development of Blaine-era no-aid provisions in state constitutions. (True enough). For the latter proposition, though, the court cites only (1) a detailed article on the Indiana no-aid provision, which observed that, in 1850, Indiana had very few Catholics and concluded that the Indiana provision was neither nativist nor anti-Catholic; and (2) Chief Justice Rehnquist's observation in Davey that the provision at issue in that case had not been connected by Davey to the Blaine Amendment. But does Indiana's situation in 1850 -- even assuming that the article's author is correct -- really support the statement that Florida's 1868 (and 1885) no-aid provision was not tainted by post-war nativism? What about the Chief Justice's observations about what he regarded as the lack of a connection between one particular Washington provision and the Blaine Amendment movement generally? (Now, I have not done the historical research on Florida's provision specifically; perhaps it really is the case that Florida's no-aid provision was anomalously free of nativist support. But the Florida court's citations do not, in my view, make the case). What's more -- Putting aside the fact that concern about the perceived anti-democratic effects and aims of 19th Century Catholicism need not be regarded as bigotry (even if, as I believe, this concern was, for the most part, misplaced); and putting aside also the question whether, under current doctrine, it matters today that the Florida no-aid provision reflected (among other things), a widespread desire to constrain the influence of Catholicism (in the same footnote, the court suggests that the 1968 retention of the provision removes any possible taint); I am quite surprised by the court's casual confidence that anti-Catholicism did not play a role in the adoption of the no-aid provision. There is, in my view, an innocents abroad quality to the discussion. On page 15, for example, the court quotes Justice Brennan's (questionable) claim in Lemon that the no-aid provisions and the common-school movement reflected a desire for secular public schools, rather than private sectarian schools. And, in footnote 7, the court notes President Grant's 1875 call for a no-aid amendment to the United States Constitution, without mentioning at all the overtly anti-Catholic (which does not, again, mean bigoted) nature of Grant's appeal (see, e.g., John T. McGreevy, Catholicism and American Freedom (2003)). I know that Marc Stern, Steve Green, and others have written powerfully and well that the Blaine Amendments are more complicated than some of the amendments' critics (including, perhaps, me) have appreciated. Still . . . I'd welcome others' reactions. Best, Rick Garnett Notre Dame Law School At 03:11 PM 11/12/2004, you wrote: The First District Court of Appeal today again held Florida's voucher system violated the no aid provision of Florida's constitution. The 114 page opinion with dissents, is available on line at: http://www.1dca.org/opinion/opinions2004/11-12-04/02-3160rh.pdf (en banc) Michael R. Masinter Visiting Professor of Law On Leave From University of Miami Law School Nova Southeastern University(305) 284-3870 (voice) Shepard Broad Law Center(305) 284-6619 (fax) [EMAIL PROTECTED] Chair, ACLU of Florida Legal Panel ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages to others. ___ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw Please note that messages sent to this large list cannot be viewed as private. Anyone can subscribe to the list and read messages that are posted; people can read the Web archives; and list members can (rightly or wrongly) forward the messages
Re: Florida Voucher Decision
Rick's thoughtful post reminded me of an issue I had planned to raise on the list but never got around to. Having read only a few pieces by early writers, such as the Elisha Williams excerpt in the McConnell, Garvey, Berg, Religion and the Constitution casebook, I was struck by the anti-Catholic foundation underlying William's commentary. I began to wonder whether there is an anti-Catholic taint not only to no-aid provisions in state constitutions but to the entire American constitutional commitment to free exercise rights -- the theological justification for which resonates with Protestant beliefs of the period and, it may be argued, stands in contrast to a Catholic perspective of the time. (I recognize that proponents of religious liberty had reasons to fear oppression from a variety of sources -- and distinctions drawn between Protestant and Catholic thought at most could only be part of the story. My question is simply how much of a part of the story of our commitment to religious liberty is it, if any?) Does anyone know if anyone has written anything on this issue? Alan Brownstein UC Davis At 05:31 PM 11/12/2004 -0500, you wrote: Dear all, Thanks very much to Michael for forwarding the Florida court's decision. I am not surprised by the result, but I am surprised by (what I regard as) the court's failure meaningfully to confront the original social meaning and purpose of Florida's no-aid provision and other similar provisions. For example: In footnote 9, the Florida court states that [w]hether the Blaine-era amendments are based on religious bigotry is a disputed and controversial issue among historians and legal scholars and that [some] commentators argue . . . that anti-Catholic bigotry did not play a significant role in the development of Blaine-era no-aid provisions in state constitutions. (True enough). For the latter proposition, though, the court cites only (1) a detailed article on the Indiana no-aid provision, which observed that, in 1850, Indiana had very few Catholics and concluded that the Indiana provision was neither nativist nor anti-Catholic; and (2) Chief Justice Rehnquist's observation in Davey that the provision at issue in that case had not been connected by Davey to the Blaine Amendment. But does Indiana's situation in 1850 -- even assuming that the article's author is correct -- really support the statement that Florida's 1868 (and 1885) no-aid provision was not tainted by post-war nativism? What about the Chief Justice's observations about what he regarded as the lack of a connection between one particular Washington provision and the Blaine Amendment movement generally? (Now, I have not done the historical research on Florida's provision specifically; perhaps it really is the case that Florida's no-aid provision was anomalously free of nativist support. But the Florida court's citations do not, in my view, make the case). What's more -- Putting aside the fact that concern about the perceived anti-democratic effects and aims of 19th Century Catholicism need not be regarded as bigotry (even if, as I believe, this concern was, for the most part, misplaced); and putting aside also the question whether, under current doctrine, it matters today that the Florida no-aid provision reflected (among other things), a widespread desire to constrain the influence of Catholicism (in the same footnote, the court suggests that the 1968 retention of the provision removes any possible taint); I am quite surprised by the court's casual confidence that anti-Catholicism did not play a role in the adoption of the no-aid provision. There is, in my view, an innocents abroad quality to the discussion. On page 15, for example, the court quotes Justice Brennan's (questionable) claim in Lemon that the no-aid provisions and the common-school movement reflected a desire for secular public schools, rather than private sectarian schools. And, in footnote 7, the court notes President Grant's 1875 call for a no-aid amendment to the United States Constitution, without mentioning at all the overtly anti-Catholic (which does not, again, mean bigoted) nature of Grant's appeal (see, e.g., John T. McGreevy, Catholicism and American Freedom (2003)). I know that Marc Stern, Steve Green, and others have written powerfully and well that the Blaine Amendments are more complicated than some of the amendments' critics (including, perhaps, me) have appreciated. Still . . . I'd welcome others' reactions. Best, Rick Garnett Notre Dame Law School At 03:11 PM 11/12/2004, you wrote: The First District Court of Appeal today again held Florida's voucher system violated the no aid provision of Florida's constitution. The 114 page opinion with dissents, is available on line at: http://www.1dca.org/opinion/opinions2004/11-12-04/02-3160rh.pdf (en banc) Michael R. Masinter Visiting Professor of Law On Leave From
