Zelman,discretionary accommodations and the distinctive natu re ofreligion

[Berg, Thomas C.]

 If Zelman had been decided the other way, a low-income family choosing
between two schools of precisely the same quality could receive several
thousand dollars in state assistance -- through a voucher or (even more
through) free tuition -- if the family chose a secular school (public,
charter, magnet, secular private), but none if they chose a school that was
religious (or "too religious").  That's a massive effect from the facial
terms and intent of the no-aid rule.  In nature and size, that effect on
choice almost certainly outweighs any effect of including religious schools
in voucher programs.  As Steffen Johnson said, sometimes a choice analysis
leads to equal treatment, sometimes it doesn't.  It would take a lot on the
other side of the ledger -- a lot more than there is -- to justify totally
excluding from a voucher programs individuals who want to attend seriously
religious schools.

To follow up on Steffen's post:  he is probably right that the decision
doesn't do enough to defend "choice" normatively as the governing principle
-- but that it *is* the governing principle is written all over the face of
the Rehnquist and O'Connor opinions.  Again, Alan, you're not stuck with
formal equality after Zelman:  on its face the decision stands as much (or
more) for choice as for formal equality.

Tom Berg
University of St. Thomas School of Law (Minneapolis)



-----Original Message-----
From: Steve Jamar
To: RELIGIONLAW at listserv.ucla.edu
Sent: 6/28/02 12:33 PM
Subject: Re: Zelman,discretionary accommodations and the distinctive natu re
ofreligion

How can government funding of religious education not "affect individual
choice
in matters of religion"?

"Berg, Thomas C." wrote:

> Religion can still be constitutionally distinctive in the sense that
> government should, as much as possible, avoid creating incentives to
> practice religion or not practice it, i.e. should avoid affecting
individual
> choice in matters of religion.  That principle can explain Zelman --
indeed,
> it is central to the Agostini/Mitchell test applied in Zelman.

--
Prof. Steven D. Jamar                               vox:  202-806-8017
Howard University School of Law                     fax:  202-806-8567
2900 Van Ness Street NW                   mailto:sjamar at law.howard.edu
Washington, DC  20008   http://www.law.howard.edu/faculty/pages/jamar/

"The longer I live, the more I read, the more patiently I think, and the
more
anxiously I inquire, the less I seem to know. . ..  Do justly.  Love
mercy.
Walk humbly.  This is enough."

John Adams, in a letter to his granddaughter, as quoted on p. 650 of
McCulloch's biography of Adams.