Colorado Christian University Case: EC & Compelling Interest

[Scarberry, Mark]

I think the Court would distinguish Locke as a clergy-education case.
 
Mark S. Scarberry
Pepperdine University School of Law
 
 

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From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Christopher C.
Lund
Sent: Wednesday, July 25, 2007 1:29 PM
To: Law & Religion issues for Law Academics
Subject: RE: Colorado Christian University Case: EC & Compelling
Interest



		I have a somewhat different take than Marty.  My sense
is that this is denominational discrimination.  If Colorado say had
special reporting and registration requirements, but only for
"pervasively sectarian" schools like CCU (but not for other religious
schools), that would fall under Larson, right?
		 
		Isn't Larson itself the root of this problem?  It was
decided in 1982, when the "pervasively sectarian" rule was in full
effect.  What that rule meant was that some denominational
discrimination was not just permitted, but constitutionally required.
Larson does not address that wrinkle.  But seeing the "pervasively
sectarian" limitation on funding as an implicit exception to Larson's
rule about denominational discrimination seems to be the only way of
squaring Larson's text with the aid cases of that era.  
		 
		I guess the question now is whether Zelman's approval of
indirect aid to pervasively sectarian institutions makes a Larson claim
possible when such institutions are excluded.  I'm not unsympathetic,
but it seems a hard argument to make, especially given the Court's
rejection of the EC claim in Locke v. Davey (fn10).
		 
		
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