EC & Compelling Interest

Rick Duncan nebraskalawprof at yahoo.com
Sun Jul 22 15:47:35 PDT 2007


Well, could you argue that supporting a quality education for all students is a compelling interest that justifies direct funding of all schools, including religious schools?
   
  Or, as in a recent federal district ct case in Colorado, does compliance with a state constitution barring funding sectarian education serve as a compelling justification for denominational discrimination including non-pervasively sectarian religious colleges but excluding pervasively sectarian religious colleges?
   
  Rick Duncan

"Volokh, Eugene" <VOLOKH at law.ucla.edu> wrote:
          Rick asks an excellent question; the doctrinal answer seems to be that some behavior -- such as coercion of religious practice -- is categorically unconstitutional, with no strict scrutiny exception, but the Court often talks about rights as being absolute and then turns around and sets up some strict scrutiny exception (even if it concludes that exception is inapplicable).  Compare, e.g., Everson's talk of no preference among religions with Larson v. Valente's strict scrutiny for denominational discrimination (under the Establishment Clause, in fact).
   
      The tough question is to come up with a concrete example of where some compelling interest would indeed be in play.  Rick, what examples did you have in mind?
   
      Eugene
   
      

      
---------------------------------
  From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Rick Duncan
Sent: Sunday, July 22, 2007 12:07 PM
To: Law & Religion issues for Law Academics
Subject: EC & Compelling Interest


  
  A question for this august body of learned friends:
   
  When a state violates the EC, is this absolutely unconstitutional or may the state attempt to show a compelling interest to justify an establishment? Does any SCt case clearly focus on this issue? Are there good law review articles addrsssing it?
   
  Does it matter what kind of EC violation the state has committed?
   
  Cheers, Rick Duncan




    Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
   
  
"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence."  --J. Budziszewski (The Revenge of Conscience)
   
  "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id.

    
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  Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902
   
  
"It's a funny thing about us human beings: not many of us doubt God's existence and then start sinning. Most of us sin and then start doubting His existence."  --J. Budziszewski (The Revenge of Conscience)
   
  "Once again the ancient maxim is vindicated, that the perversion of the best is the worst." -- Id.


       
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