Establishment Clause and Strict Scrutiny (and Locke v. Davey)

[Rick Duncan]

Why was strict scrutiny invoked in Larson? Isn't the structural prohibition--whether conceived of as non-endorsement, neutrality among religions, or non-advance/non-inhibit--clearly involved in cases of denominational preferences? Why not simply say that denominational preferences are forbidden--period-- because they violate the neutrality/non-endorsement/non-advancement rule?

I am currently working on a piece, for a law review symposium, on Larson and Locke v. Davey. Locke v. Davey can be viewed as a case involving denominational discrimination between religious schools that teach theology from a "devotional" or believing perspective and other religious schools that are willing to self-certify that their theology majors are not pursuing a degree in devotional theology. 

If Josh Davey's brother were to litigate the same case tomorrow, I would like to see the case developed as one involving denominational preferences under the EC and Larson. Washington did not define "devotional theology," nor did it make its own determination as to which schools taught devotional as opposed to non-devotional theology. Instead, it allowed schools to self-certify. I have anecdotal evidence that some religious schools (e.g. Gonzaga) self-certified that their theology programs were not devotional. Other schools, such as Northwest College, self-certified the other way. Thus, theology majors studying for a career in ministry at the former schools were funded, and those at the latter schools were denied funding.

Is this not a denominational preference under the EC? Under this program, the state is paying ministry students to choose some religious colleges over others when pursuing their degrees in religious studies.

If so, we don't need to talk about substantial burdens under the FEC, nor about play in the joints between what the EC permits and the FEC requires. The EC forbids denominational discrimination and so does the FEC!

As I said, there is no clear evidence that I can find in public records about this, but if the case were to arise under the EC, discovery might well document the anecdotal stories I have heard of disparate treatment of theology majors at different religious colleges. And if denominational discrimination exists, then Davey should come out the other way under the EC. No?

Or does the EC contain a substantial burden requirement? If so, only in funding cases or in public display cases as well?

Cheers, Rick Duncan

Rick Duncan 
Welpton Professor of Law 
University of Nebraska College of Law 
Lincoln, NE 68583-0902


"And against the constitution I have never raised a storm,It's the scoundrels who've corrupted it that I want to reform" --Dick Gaughan (from the song, Thomas Muir of Huntershill)

--- On Wed, 7/1/09, Hamilton02 at aol.com <Hamilton02 at aol.com> wrote:

From: Hamilton02 at aol.com <Hamilton02 at aol.com>
Subject: Re: Establishment Clause and Strict Scrutiny
To: religionlaw at lists.ucla.edu
Date: Wednesday, July 1, 2009, 5:55 PM



 

Strict scrutiny fits uneasily (and therefore appears in only one case) in
Establishment Clause doctrine, because the Establishment Clause is a structural
element of the Constitution more akin to the separation of federal powers than
the rights-bearing provisions of the Bill of Rights.  If one assesses the
doctrine as a whole, it is far more reminiscent of the separation of powers
doctrine than it is of the rights clauses.  Just as the separation of
powers cases are more complicated and less predictable than the Free
Exercise or the Free Speech Clauses (even with the latter's minutiae), the
Establishment Clause is as well.   The challenge to a
cleaner doctrine lies in the plasticity of power, which means that the
relevant players are constantly operating and changing to overtake the
power of the other.  At a fundamental level, church and state operate
no differently than do rival branches of the government.  
 
In my view, this is why the attempt to reduce the Establishment Clause to a
right of religious entities is a radical movement.  Such
an interpretation turns the Establishment Clause into a servant of the Free
Exercise Clause, rather than the Constitution's structural means of limiting
religious entities from overtaking the government (and vice versa), which was a
live and serious concern on the part of James Madison in the Memorial and
Remonstrance.
 
On the shameless plug side, I have been working on this approach
for a decade now and originally in an exchange in the
Conn L. Rev.--  Power, the Establishment Clause, and Vouchers, 31
Conn. L. Rev. 807 (1999);  Reply, 31 Conn L Rev 1001 (1999).  
 
Marci
 
Marci A. Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
 
 
 
 
 
I am curious whether there is any commentary on why Establishment
Clause
doctrine does not include a strict scrutiny framework.  Do list
members
think that the Establishment Clause does not include this
framework because
the clause is a structural guarantee and is thus
different from the many
constitutional provisions that have been
subject to a balancing of government
and individual interests? Or is
it because we just don't think that a
situation would arise in which
promoting religion would actually be necessary
to promote some
governmental interest?  Are there any other ideas about
why the
Establishment Clause is different?

Thanks.

-Jesse
Merriam

 It's raining cats and dogs -- Come to PawNation, a place where pets rule!
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