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

Thu Jul 2 07:06:31 PDT 2009

This just goes to the first paragraph, but I think it's because Larson
comes before the endorsement test really forms (it's decided in 1982),
and because Lemon's framework doesn't precisely fit
denominational-discrimination cases.  The Larson Court says that "the
Lemon v. Kurtzman 'tests' are intended to apply to laws affording a
uniform benefit to all religions, and not to provisions [like this one]
that discriminate among religions."  456 U.S. at 252.  In his dissent,
Justice White criticized the Court for creating this new test and then
applying it without remanding to the district court to apply in the
first instance.

______________________
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402

>>> nebraskalawprof at yahoo.com 7/1/2009 10:57 PM >>>

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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