Bowman v. U.S.

[Brownstein, Alan]

One problem, of course, is that if a free speech analysis is employed, it will cut both ways. Private organizations focusing on environmental, social justice, or civil liberty issues can't be treated more favorably than religious institutions. But they also can't be treated less favorably than religious institutions. Eugene, to his credit, has always adopted a formal equality position in this area that would permit the free speech clause to be used to prohibit religious accommodations and exemptions that discriminated in favor of religious institutions as well as to prohibit government action that discriminated against religious institutions. (I hope that I am describing your position correctly, Eugene. My apologies if I got it wrong.) I don't see a lot of evidence that the government or the courts are ready to adopt that framework across the board.

Alan Brownstein

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Monday, May 04, 2009 9:41 AM
To: Law & Religion issues for Law Academics
Subject: Bowman v. U.S.

Any thoughts on Bowman v. U.S., a Sixth Circuit case decided last
December but just redesignated two weeks ago as being for publication?
Federal law allows a wide range of public and community service by
military personnel - including working for organizations that provide
"elementary, secondary, or postsecondary school teaching," or "any other
public or community service" -- to "count toward [one's] years of
service needed to obtain a full twenty-year military retirement."  But
the program excludes participation in activities of "organizations
engaged in religious activities, unless such activities are unrelated to
religious instructions, worship services, or any form of
proselytization" (as well as in activities of for-profit businesses,
labor unions, and partisan political organizations).  

Thus, for instance, if someone were volunteering to teach in a school
program aimed at spreading various controversial views on environmental
responsibility, or social justice, or civil liberties, that would
presumably count.  But if someone were volunteering to teach in a school
program aimed at spreading religious views, that would not count.  The
Sixth Circuit upheld this against a Free Exercise Clause challenge,
citing Locke v. Davey.  Is that right?  What should the result have been
under the Free Speech Clause, if such a claim had been made (presumably
relying on Rosenberger)?

Eugene
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