Strengthening Constitutional Self-Government

No Left Turns

Pervasively unconstitutional

That’s the title of my short piece on Michael McConnell’s excellent opinion for a unanimous appellate panel in a case regarding student aid in Colorado.

All the usual suspects don’t agree with him. Where’s his erstwhile HLR editor and law school colleague?

Discussions - 3 Comments

I did a case brief on this the other day, and must say that the decision isn't too useful. It's always hard to tell where appellate judges stand because they--especially in First Amendment cases--are tied to numerous Supreme Court cases.

However, the strongest distinguishing factor between this case and Locke (where the Supreme Court held that a law banning state aid to divinity students was constitutional) was that Locke applied across the board, while this Colorado law took the impermissible step of differentiating religions. For instance a harsher ban, one against all aid to sectarian schools would be upheld under McConnell's logic.

Now I suppose one could say McConnell made the least bad use of a bad precedent (Locke). This case was unhelpful in addressing animus issues, and no federal court yet has faced head on the animus behind the Blaine Amendments, which are now the primary obstacle to school vouchers in America. Still it would have been better to have focused on the balancing of the burden analysis and distinguish Locke as a particularly small burden. McConnell mentions that banning scholarships to all CCU students is more than just divinity students, but the primary reasoning is that the law chooses among religions. Therefore, the policy result will be that liberals can still constitutionally refuse to fund any sectarian related education.

Where are Judge McConnell's supposed friends and colleagues? Taking a dive in order to be good liberals? Or good careerists? Let's not be naive. People who have dedicated their lives to liberalism aren't a very honorable bunch, for the most part.

It reads to me, perhaps contra Clint, as a play by McConnell to set the stage for the Supreme Court to either overturn Locke or make it irrelevant. It seems clear to me (though not to the late CJ Rehnquist) that the law in question in Locke clearly obligated the state to *choose* among religions when it did not really need to do so (i.e. in order to fulfill some important, perhaps compelling, state interest). Rehnquist's argument in Locke, if I remember correctly, was that the state *could* fund scholarships for the kind of devotional theology degrees, but that it need not do so if it thought doing so would run afoul of an EC commitment. McConnell's arguments here seem at least to set the ground for suggesting that the only way a state can consistently and rationally make that sort of justifiable discrimination - some degrees are acceptable, others are not, some colleges are acceptable, others are not - by looking at the details of exactly what is taught there, what are its preconceptions, what are its pedagogical goals, etc. But that requires the state to engage in a judgment that *some* religious traditions are more acceptable than others. So even if it's theoretically ok for a state to discriminate among religious schools or religious majors, the process involved isn't. So maybe the opinion is more useful than first appears, but I'm not a lawyer so maybe I've missed something important here.

Leave a Comment

* denotes a required field

No TrackBacks
TrackBack URL:

Warning: include(/srv/users/prod-php-nltashbrook/apps/prod-php-nltashbrook/public/sd/nlt-blog/_includes/promo-main.php): failed to open stream: No such file or directory in /srv/users/prod-php-nltashbrook/apps/prod-php-nltashbrook/public/2008/07/pervasively-unconstitutional.php on line 467

Warning: include(): Failed opening '/srv/users/prod-php-nltashbrook/apps/prod-php-nltashbrook/public/sd/nlt-blog/_includes/promo-main.php' for inclusion (include_path='.:/opt/sp/php7.2/lib/php') in /srv/users/prod-php-nltashbrook/apps/prod-php-nltashbrook/public/2008/07/pervasively-unconstitutional.php on line 467