Bagley & Strout

Eric Treene treene at BECKETFUND.ORG
Wed Oct 13 18:02:18 PDT 1999

I am not sure I follow Alan's Rosenberger  hypo and its analogy to Maine.  Alan,
are you referring to the fact that religiously oriented private schools want to
remain tax-exempt entities?   Under the Maine tuitioning program, students can use
their vouchers to attend schools at public schools or secular private schools.  The
public schools are certainly not taxed.  Nor, would I suspect, are the vast
majority of the private schools that take the tuition dollars taxable entities.

But in any event, in my opinion your hypo focuses on the wrong entity.  The
analogue in Maine for your hypothetical  Rosenberger publication is not a  private
religious school in Maine, but the Maine parents who get control over tuition and
the attendant benefit.  The schools are more analogous to the Rosenberger publisher
who gets paid by the University.  The parents are not claiming an equal right to a
benefit at the same time they are asking for special exemptions or favors from the
government:  they are simply asking for the equal right to the benefit.

If the Maine parents were asking to get a special tax deduction for the "donation"
of their voucher to a religious school, then I'd agree with you.

Eric Treene

A.E. Brownstein wrote:

> 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

Eric W. Treene
The Becket Fund for Religious Liberty
2000 Pennsylvania Av., N.W.
Suite 3580
Washington, D.C.  20006
(202) 955-0095

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