Bagley & Strout

[A.E. Brownstein]

Pinette and Rosenberger were also a lot easier because they were less
likely to involve a conflict between religion specific exemptions and
accommodations and mandated equality of treatment. Just think how
interesting Rosenberger would have been if the student periodicals funded
by the University     were all sold at a nominal price to help defer
publications costs, the sale of periodicals was subject to a sales tax, and
the religious group sought equality of funding from the university and a
religion specific exemption from the sales tax from the state at the same time.

                                                         Alan Brownstein
                                                         UC Davis





At 12:50 PM 10/13/1999 -0700, you wrote:
>I agree with Marty's observations.  I note, however, that  the Court was
>willing to take up the "may" and "must" issues at the same time in Pinette and
>Rosenberger.  This probably has something to do with the fact that viewpoint
>discrimination is a well-developed doctrine, whereas free
>exercise-discrimination cases and religious equal protection cases are few and
>far between, and therefore the "must" issue independently was as great a task
>to resolve as the "may" issue they would have had to get through first.
>
>Not to mention the fact that the vouchers are, well, huge, while the access of
>religious speakers to public fora in the early '90s probably wasn't looming
>large in the minds of most people.  Imagine,  for example, if the Court had
>accepted in place of Roe v. Wade a case where a woman was demanding that
>Medicaid pay for an abortion.
>
>Eric Treene
>
>Marty Lederman wrote:
>
> > Re:  the cert. denial in Bagley and Strout.  Not very surprising.  The
> > Justices have been reluctant (see, e.g., Jackson) to decide whether states
> > *may* provide vouchers for religious schools; until they do, I can't see a
> > cert. grant in a case concerning whether states *must* provide vouchers for
> > such schools.  And anyway, they have plenty on their hands with Mitchell v.
> > Helms, the outcome (and rationale) of which may bear significantly on the
> > voucher cases.
> >
> > Marty Lederman
> > (in my personal capacity)
>
>
>
>--
>Eric W. Treene
>The Becket Fund for Religious Liberty
>2000 Pennsylvania Av., N.W.
>Suite 3580
>Washington, D.C.  20006
>(202) 955-0095