Bowman v. U.S.

[Rick Duncan]

How would you all analyze the Free Speech Clause issue in a case that was like Bowman except the exclusion covered "participation in activities of schools or organizations teaching or advocating about the need to reduce global warming or about marriage from a gay rights perspective?"

Would it violate the Free Speech Clause to allow military service personnel to accumulate pension rights via volunteer service in all non-profits except those excluded in the hypo above? If so, don't we have the same free speech issue when the exclusion concerns volunteering for schools teaching from a religious perspective?

Again, if the dictum in Locke v. Davey applies, it applies to these secular speech exclusions as well, since Rehnquist merely concluded that a scholarship is not a forum triggering the Free Speech Clause. So, under Davey, a scholarship exclusion for students majoring in "gender studies from a feminist perspective" would also have failed to trigger the Free Speech Clause. If this seems wrong, it is because it does indeed implicate the FSC to take the viewpoint of the major into account when awarding scholarships such as the Promise Scholarship. The Rehnquist dictum in Davey is both unreasoned and wrong. 

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





--- On Mon, 5/4/09, Volokh, Eugene <VOLOKH at law.ucla.edu> wrote:

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>
Date: Monday, May 4, 2009, 9:41 AM

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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