Bowman v. U.S.
Douglas Laycock
laycockd at umich.edu
Mon May 4 15:45:59 PDT 2009
Rick's distinction is quite plausible as a matter of first principle. But Davey is so clearly based on Rust that I think we have to assume that Rehnquist meant to reject Rick's distinction. Davey's view seems to be that anything the government pays for is sufficiently governmental that the government can pick and choose what it wants to support.
That principle has extreme implications, as Rick's hypotheticals suggest. It must have a stopping point somewhere, but the Court has not left itself with many tools to find that point.
Quoting Rick Duncan <nebraskalawprof at yahoo.com>:
> Well, Chip, Rust is about government speech as part of government
> health care programs, not about a govt decision to encourage govt
> workers to volunteer in private non-profit activities except those
> with forbidden viewpoints. If the govt counted all volunteer
> activities "except volunteer activities for an organization that
> promotes abortion rights"--in other words, volunteering for pro-life
> groups counts but not for pro-choice groups--I think this would
> constitute unconstitutional viewpoint discrimination.
>
> In other words, in Bowman the govt is facilitating private speech,
> not taking a speech position itself.
>
> So, Chip, how do you answer my Bowman hypo:
>
> 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?
>
> Cheers, Rick
>
>
> 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, 1:14 PM
>
> And how would you, Rick, analyze the free speech issue if the
> the exclusion covered:
> "participation in activities of organizations
> teaching about, counseling, advocating, or performing abortions"? In
> Locke, and in the abortion case, and in your hypothetical, the
> government must only have a non-arbitrary reason for the exclusion.
> In Locke, the non-arbitrary reason had to do with not funding the
> training of clergy; in my hypothetical, the reason would be just like
> that in Rust v. Sullivan and its progeny (that the government is
> "pro-life," and does not want its resources to support a certain
> cause, thought immoral by many citizens). Perhaps your hypothetical
> would similarly be OK, particularly on the gay marriage point.
> Excluding organizations that teach "about the need to reduce global
> warming" is a bit tougher, but not much -- the cause is
> controversial, and the state does not want to be creating incentives
> for people to advance that cause. They remain free to advance it
> with their own resources.
>
> In Bowman, the non-arbitrary reason for exclusion is not so easy to
> find, but perhaps it is designed to keep the government away from the
> question of whether a particular religious organization serves any
> public good (the organization might get a tax exemption, but those
> who help it can't get this sort of credit toward a military
> pension). If all religions must be included in the retirement credit
> system, perhaps the government would be a bit stingier in recognizing
> a religion for tax exemption purposes. That doesn't sound to me like
> a healthy constitutional trade-off.
>
> The rule upheld in Bowman is a product of a now abandoned
> constitutional regime, which is why Bob Tuttle and I were surprised
> that DoD still had this rule, and that DOJ defended it. But its
> provenance does not make it unconstitutional, especially in light of
> Locke.
>
> Chip
>
> ---- Original message ----
>> Date: Mon, 4 May 2009 12:38:43 -0700 (PDT)
>> From: Rick Duncan <nebraskalawprof at yahoo.com>
>> Subject: Re: Bowman v. U.S.
>> To: Law & Religion issues for Law Academics <religionlaw at lists.ucla.edu>
>>
>> How would you all analyze the Free Speech Clause issue in a
>> case that was like Bowman except ?"
>>
>> 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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> 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
> _______________________________________________
> To post, send message to Religionlaw at lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
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>
> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
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>
>
>
>
Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
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