EC & Compelling Interest
Douglas Laycock
laycockd at umich.edu
Mon Jul 23 19:00:23 PDT 2007
I agree with David. I very briefly floated this idea as deserving
exploration with respect to inner city schools sometime long ago --
in 1981 I think, in Columbia. I don't think the Court ever
entertained the idea for a minute in the /Lemon/ era, and of course
what is happening now is that they are moving in the direction of
saying that aid to these programs does not violate the Establishment
Clause even prima facie, so the issue of justification cannot arise.
The trouble with Rick Duncan's examples is that the alleged
compelling interests are simply negations of the clause. Folks here
really really want government support for their religion, and that
desire is a compelling interest that justifies an exception to the
rule against government support for religion. There are obvious
analogies in Mississippi in 1965, and among some affirmative action
advocates today.
Compelling interests don't arise out of disagreement with the
Court's interpretation of the underlying right. Compelling interests
generally arise out of some cross cutting need that arguably justifies
an exception at the point of its intersection with the constitutional
right. Occasionally the area of intersection is pretty large, but it
cannot just be that we really really don't like the underlying right
as interpreted by the Court. "It should go without saying that the
vitality of these constitutional principles cannot be allowed to
yield simply because of disagreement with them," the Court said in
/Brown II. /That aspiration has not actually been achieved, but we
can hardly make it doctrine that disagreement overrides
constitutional rights.
Quoting "Saperstein, David (RAC)" <DSaperstein at rac.org>:
> I would assume that the area of EC issues that is most tempting to
think
> of in terms of compelling interest has to do with government
> expenditures not speech. If e.g. studies actually showed that
religious
> based substance treatment programs were decisively more effective
than
> non-religious programs, is there a compelling government interest
in
> addressing effectively the drug epidemic or in providing effective
> (often life-saving) health treatments for eligible patients that
might
> justify funding to expand such programs? In the case of damage or
> destruction from natural catastrophes, might a compelling interest
test
> justify direct payments to rebuild churches? Might the compelling
> interest in protecting more likely terrorism targets e.g. NY City
based
> synagogues, churches, mosques justify direct government funding for
> enhancing security?
>
>
>
> As I assume most of you know, I write as someone who in the main
opposes
> such funding as unconstitutional and few courts have taken up this
line
> but the funding arena is where I find folks falling back
intuitively on
> this kind of thinking.
>
>
>
>
>
> ________________________________
>
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Newsom
Michael
> Sent: Monday, July 23, 2007 7:06 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: EC & Compelling Interest
>
>
>
> Isn't the whole point of the EC that the government cannot be
permitted
> to be a "willing speaker" when it comes to God-talk? And isn't
this the
> reason why a per se analysis is more consistent with that purpose
than
> any compelling interest test might be? The EC contains its own
> compelling interest, doesn't it? And isn't that compelling
interest
> essentially freedom FROM religion? (Why, for the sake of
discussion,
> should X's freedom OF religion trump Y's freedom FROM religion?
And
> isn't it true, therefore, that large claims of freedom OF religion,
of
> Free Exercise, should be viewed with a great deal of suspicion
> especially given the categorical nature of the EC, of freedom FROM
> religion, whereas there is no comparable categorical freedom OF
> religion? Of course my Protestant Empire thesis provides a useful
way
> of assessing both freedom FROM and freedom OF religion claims. I
have
> another Protestant Empire piece coming out shortly which looks at
this
> problem in part through the lens or prism of proselytizing in the
public
> schools and elsewhere.)
>
>
>
> Isn't it also true, therefore, that to characterize the objection
to the
> display as a "heckler's veto" begs the question to be decided? If
the
> government cannot be a willing speaker then the "censor" is not the
> "heckler" but is the EC itself. It is interesting to recall that
the
> pre-Incorporation common school religion cases divided on this
point.
> The state courts that upheld prayer and Bible reading in public
schools
> almost always characterized the objectors as "hecklers." The
minority
> of state courts that struck down or limited these practices never
used
> such terminology in describing those who objected to these
religious
> exercises.
>
>
>
> Was the pre-Incorporation state court minority right when it struck
down
> or limited Bible reading and prayer in the public schools? Were
Engel
> and Schempp correctly decided?
>
>
>
> ________________________________
>
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Rick
Duncan
> Sent: Monday, July 23, 2007 5:14 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: EC & Compelling Interest
>
>
>
> Of course, one of the problems with a compelling interest test is
no one
> really knows what interests are extraordinarily important and which
are
> less so. And different folks may have different scales of
importance.
>
>
>
> In the case of a holiday display, one could view this as a case
> involving a willing speaker (the county govt) and a willing
audience
> (those who wish to enjoy the holiday expression) who are being
censored
> by a heckler's veto under the EC. I think it is important that govt
> speech be available to those who wish to receive it. Is it
> "extraordinarily important?" I don't know. I would at least like to
see
> the Ct apply the compelling interest test and explain why this
> speech/non-censorship interest is not important.
>
>
>
> Alternatively, the compelling interest in such cases might be the
govt's
> strong interest in diversity and equal regard for religious
citizens in
> a pluralistic public square. If all sorts of secular holidays are
> celebrated in the public square (gay pride, cinco de mayo, Columbus
Day,
> pork producers day, etc), many people of faith might well feel
> disrespected and deeply injured by being the only subgroups in the
> community whose holidays are not celebrated.
>
>
>
> And what about the compelling interest of school officials to
decide
> which curriculum best meets the needs of students in the public
schools
> trumping EC attacks on ID, music curriculum, and the Pledge of
> Allegiance?
>
>
>
> Just some thoughts. I don't think these cases are as easy as Eugene
> seems to think they are, because what may not seem important to
some may
> seem very important to others. And the fact that the Ct doesn't
even
> play the game suggests that maybe the reason is that there is no
game to
> be played because the EC applies as a categorical rule without a
> balancing test.
>
>
>
> Rick Duncan
>
> "Volokh, Eugene" <VOLOKH at law.ucla.edu> wrote:
>
> Rick: You might well be right, but it's hard to tell
without
> some cases that test our sense of this, by coming out
> differently under
> strict scrutiny than under per se invalidation. It's hard
to see
> a
> compelling interest behind government holiday displays --
one
> can surely
> argue that endorsement shouldn't be seen as implicating the
> Establishment Clause, but it's harder to say that it does
> implicate it
> but that it's just extraordinarily important to allow it.
>
> 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 4:45 PM
> To: Law & Religion issues for Law Academics
> Subject: RE: EC & Compelling Interest
>
>
> When the Ct strikes down a law under the EC, it usually
declares
> the law unconstitutional w/out any type of "scrutiny." Why
> doesn't the
> Ct at least go through the motions of applying the
compelling
> interest
> test? Is the EC an absolute, categorical rule prohibiting
laws
> that
> establish religion?
>
> Take the Nativity display in Allegheny County--should the
county
> govt argue that it has a compelling interest in recognizing
that
> many
> persons are willing recipients of the county's speech
> recognizing that
> some of its citizens are celebrating a religious holiday on
Dec
> 25? Why
> should the Pl, whose liberty is not in any way restricted
by a
> passive
> holiday display, have the right to censor a display that
means a
> great
> deal to others in the community who wish to view the
display?
> Why not at
> least analyze the compelling interest test in cases like
these?
>
> I have always assumed that the EC here is a structural
> limitation on the power of govt, one that denies govt the
power
> to
> "endorse" religion even if it has good reasons to put up
the
> display.
>
> Am I wrong?
>
> Rick Duncan
>
> "Volokh, Eugene" 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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> _______________________________________________
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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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> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password,
see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[2]
>
> Please note that messages sent to this large list cannot be
> viewed as private. Anyone can subscribe to the list and read
messages
> that are posted; people can read the Web archives; and list members
can
> (rightly or wrongly) forward the messages to others.
>
>
>
> 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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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
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