Bowman v. U.S.

[Rick Duncan]

Couple of quick points re Locke v. Davey:

1. The burden here is much more substantial than in Davey--remember, Joshua Davey could have simply dropped his major for 2 years and used his full scholarship to take the exact same couses at the same college. To the extent that Davey turned on the Ct's finding of only a minor burden on free ex, this case seems to be a much stronger one for the Pl.

2. The Free Speech issue was not before the Ct in Davey (the Ct granted cert only on the Free Ex issue). Thus, Rehnquist's unsupported conclusory assertion in a brief footnote in Davey, that a scholarship did not create a forum for speech, was dictum and completely unreasoned dictum at that. I have written about this at some length: Duncan, Locked Out: Locke v. Davey and the Broken Promise of Equal Access, 8 U. Pa. J. Const. L. 699 (2006)

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




--- On Mon, 5/4/09, Ira (Chip) Lupu <iclupu at law.gwu.edu> wrote:

From: Ira (Chip) Lupu <iclupu at law.gwu.edu>
Subject: Re: Bowman v. U.S.
To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Date: Monday, May 4, 2009, 9:55 AM

Bob Tuttle and I prepared an extended analysis (for the Roundtable on Religion and Social Welfare Policy) on Bowman v. U.S. at the time of the district court's decision in the case.  The government's position seemed quite out of line with the GWB Faith-Based Initiative, but the outcome does seem correct under Locke v. Davey.  And this is a program for retirement credit for former members of the Armed Forces -- hard to see any better free speech claim here than there was in Locke (where the claim was summarily rejected).  Our    analysis is here: http://www.religionandsocialpolicy.org/legal/legal_update_display.cfm?id=62

Chip 

---- Original message ----
>Date: Mon, 4 May 2009 09:41:16 -0700
>From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>  
>Subject: Bowman v. U.S.  
>To: "Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
>
>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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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052
(202)994-7053
_______________________________________________
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