Estab Cl v. other clauses

[Vance R Koven]

On Mon, 26 Jan 1998, Eugene Volokh wrote anent Columbia Union College v.
Clarke:

>     My question:  If there is a tension between the Estab Cl and the
> other clauses -- and I think there isn't, because I think that
> allowing religious institutions to participate in neutral subsidy
> schemes is constitutional under the Estab Cl, just as allowing them
> to participate in neutral tax exemptions or in neutral services
> schemes (such as police, fire, sewer access, and so on) is
> constitutional -- why should the Estab Cl trump the other clauses and
> not vice versa?

This concern, which is fully justified, raises a point that's been
bothering me in reading the comments on this list, namely whether avoiding
a violation of (take your pick) the Establishment Clause, Equal Protection
Clause, Free Speech Clause, etc., is the kind of "compelling interest"
that the courts refer to when analyzing substantive issues under any of
them. My reason for questioning is that there appears to be a bit of a
circularity in the necessary analysis and its application in particular
cases, or at least that such an analysis is at a meta-level compared to
how governments regulate behavior. Are there cases in which the avoidance
of a prohibitory constitutional mandate was itself deemed a compelling
interest justifying some affirmative regulation of ground-level conduct?
If so, did the courts consider that there was any difference between one
kind of compelling interest and another?

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