EC & Compelling Interest

marty.lederman at comcast.net marty.lederman at comcast.net
Mon Jul 23 21:07:18 PDT 2007


I've barely glanced at the decision, but from what I've quickly read, I don't think it's fair to call what Colorado has done denominational discrimination, notwithstanding what the court wrote.  It's simply a prohibition on funding religious education itself, of *any* denomination.  "Pervasively sectarian" schools are automatically ineligible not because they are of a particular denomination, but because (by definition) the funds would *necessarily* fund religious teaching ("indoctrination") in such schools.

It's not clear to me whether any of the aid programs at issue here are Zelman-like voucher programs.  They don't appear to be.  But if any of them were, the only question would be whether the logic of Locke v. Davey applies here (I think it probably does).

If, instead, some of the aid programs at issue involve direct aid, as in Mitchell v. Helms, then the aid itself cannot go to CCU *under the federal Constitution,* because under the governing O'Connor opinion (and even under the Thomas plurality), direct *financial* aid may not be used for inculcation of religious truth. 


 -------------- Original message ----------------------
From: Rick Duncan <nebraskalawprof at yahoo.com>
> Art: 
>    
>   Colorado has a college scholarship program that can be used to attend any 
> public or private college including non-pervasively sectarian religious colleges 
> but excluding pervasively sectarian religious colleges. In other words, students 
> who attend non-pervasively sectarian (but nevertheless sectarian) religious 
> colleges receive funding but those who attend "pervasively sectarian" colleges 
> may not use their scholarships.
>    
>   The dist ct held that this amounts to denominational discrimination contrary 
> to Larson and  the "clearest command" of the EC, but that the state's interest 
> in not funding pervasively sectarian education was a compelling interest that 
> trumped the federal EC.
>    
>   Can this decision be correct? Does Colorado's interest in discriminating among 
> religious colleges really trump the clearest command of the EC forbidding such 
> denominational discrimination? Or, to paraphrase Doug Laycock, is this nothing 
> more than the state saying "we disagree with the EC as it has been interpreted 
> by the SCt?"
>    
>   Rick Duncan
> 
> ArtSpitzer at aol.com wrote:
>   It seems to me that if a state says, "we'll give grants to any social service 
> agency that operates a 24/7 pregnancy prevention hotline," and denomination X 
> says "we'd like a grant, but our faith forbids us from operating anything on the 
> sabbath," and the state says "too bad, then," that's not what the Constitution 
> forbids as "denominational discrimination."  Some denominations just can't 
> qualify for the terms of the grant.  I don't know the Colorado Christian 
> University case but it sounds like the same sort of thing.
> 
> Art Spitzer
> 
> 
> In a message dated 7/23/07 10:54:49 PM, nebraskalawprof at yahoo.com writes:
> 
> 
>   Okay, Doug, then how do you decide the Colorado Christian University case in 
> which the state has engaged in denominational discrimination against pervasively 
> sectarian schools, but claims to have a state anti-establishment compelling 
> interest (in not funding sectarian schools) that trumps the federal EC 
> violation?
>  
> Is this a case in which the state compelling interest in not funding certain 
> religious colleges is merely a disagreement with the clearest command of the 
> federal EC prohibiting denominational discrimination?
> 
> 
> 
> 
> 
> 
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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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