Thanks for the piece on Carson. My favorite example of the government funding ministers (contra Locke) is the tax expenditure in Section 107 of the Internal Revenue Code, which exempts either the rental value or rental allowance of a home "of a minister of the gospel."
Sir, I am no legal scholar. I have not even read the full opinions referenced above. I appreciate your sharing your views and I agree whole heartedly with your first two normative claims. I disagree with the third. I do so because I think that the Court’s equating religion with a “viewpoint” in Shurtleff is facile and perhaps disingenuous. I doubt seriously that the Founders considered religion a viewpoint. Were that the case I expect the Establishment Clause would include viewpoint rather than solely religion. I also doubt that the current conservative majority consider their own Catholicism merely a viewpoint. When focused on free exercise, they certainly view religion as deserving far more “protection” that viewpoint. They conveniently sing a different tune when it comes to establishment.
Thanks much for reading and for taking the time to write. For an earlier Supreme Court opinion explaining the relationship between viewpoint and religion in a funding context, you might take a look at Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) (https://www.law.cornell.edu/supremecourt/text/515/819). I also explore some of these ideas in my 2016 book, Confident Pluralism: Surviving and Thriving Through Deep Difference. Or you could read a free version of a related argument in my 2015 article, "The First Amendment's Public Forum" (https://scholarship.law.wm.edu/wmlr/vol56/iss4/5/).
Thank you for your response, and the leads to more learning! I am also curious about your thoughts on what I see as the conservative majority on the court turning (in my view) the free exercise concept on its head. Specifically, as a maker of cakes who serves the general public, i am free to discriminate against those whose sexual orientation, viewpoint, lifestyle, what have you, conflicts with the tenets of my religion. May I refuse to serve a Muslim whom i may presume holds beliefs my religion deems blasphemous? May I refuse to serve a person of a different color because my religion (as in our own country’s history) deemed them to be a lesser status of human, if that? May I refuse to serve someone who wears a pro choice t shirt because my religion is staunchly anti-abortion? My concern is that this court majority seems intent on providing a special status to Christians, such that free exercise for them means that they can ignore anti-discrimination law at their pleasure.
Incidentally, if you haven’t the time or inclination to educate me, I certainly understand and respect that. I came across your work via the Wash U newsletter; our son is a 2020 graduate.
Hi Steve, thanks for your comment and apologies for my delayed response. These are good and complex questions. I cover some related ideas in my book, Confident Pluralism. More here: https://www.jinazu.com/confident-pluralism. Thanks for engaging!
John, I participated as a committee member and as the chair in a number of WASC accreditation visits to religious schools in Southern California. (I was assigned religious schools because I was on staff at a Christian school. We visited and recommended accreditation status on Catholic, Lutheran, Christian, and Arminian schools.) For high schools this accreditation was needed for their students to received credit towards public higher education and a lot of private colleges and universities as well. One way that many of these schools overcame objections to their science classes that taught that evolution was not a viable explanation of the natural world was that these courses were grandfathered in at some point in the past. However, if they were to offer a new course that taught Creationism it would not be approved by the University of California and therefore not counted as a science credit.
My point is that a state could fund students going to these kind of religious schools if the schools met the requirements for accreditation from their regional accreditation entity. If a school did not acquire proper accreditation the state could refuse to fund students who attended. I'm wondering if states like Maine with this problem of not having enough public schools could tighten their accreditation standards that might lead to certain religious schools losing their accreditation. This would not be on the account of their religion courses, but rather science, history, government, English, and other courses that varied too far from state standards.
I think you're right that accreditation plays into these issues. But it's complicated by how normatively fraught so many of these subjects are. There were similar tensions at play in the 1970s and 1980s in establishment clause cases around funding for textbooks--what was allowed, what was too "sectarian," and so forth. And we'll likely see these same tensions in future accreditation challenges.
Thanks for the piece on Carson. My favorite example of the government funding ministers (contra Locke) is the tax expenditure in Section 107 of the Internal Revenue Code, which exempts either the rental value or rental allowance of a home "of a minister of the gospel."
Sir, I am no legal scholar. I have not even read the full opinions referenced above. I appreciate your sharing your views and I agree whole heartedly with your first two normative claims. I disagree with the third. I do so because I think that the Court’s equating religion with a “viewpoint” in Shurtleff is facile and perhaps disingenuous. I doubt seriously that the Founders considered religion a viewpoint. Were that the case I expect the Establishment Clause would include viewpoint rather than solely religion. I also doubt that the current conservative majority consider their own Catholicism merely a viewpoint. When focused on free exercise, they certainly view religion as deserving far more “protection” that viewpoint. They conveniently sing a different tune when it comes to establishment.
Thanks much for reading and for taking the time to write. For an earlier Supreme Court opinion explaining the relationship between viewpoint and religion in a funding context, you might take a look at Rosenberger v. Rector and Visitors of the University of Virginia, 515 U.S. 819 (1995) (https://www.law.cornell.edu/supremecourt/text/515/819). I also explore some of these ideas in my 2016 book, Confident Pluralism: Surviving and Thriving Through Deep Difference. Or you could read a free version of a related argument in my 2015 article, "The First Amendment's Public Forum" (https://scholarship.law.wm.edu/wmlr/vol56/iss4/5/).
Thank you for your response, and the leads to more learning! I am also curious about your thoughts on what I see as the conservative majority on the court turning (in my view) the free exercise concept on its head. Specifically, as a maker of cakes who serves the general public, i am free to discriminate against those whose sexual orientation, viewpoint, lifestyle, what have you, conflicts with the tenets of my religion. May I refuse to serve a Muslim whom i may presume holds beliefs my religion deems blasphemous? May I refuse to serve a person of a different color because my religion (as in our own country’s history) deemed them to be a lesser status of human, if that? May I refuse to serve someone who wears a pro choice t shirt because my religion is staunchly anti-abortion? My concern is that this court majority seems intent on providing a special status to Christians, such that free exercise for them means that they can ignore anti-discrimination law at their pleasure.
Incidentally, if you haven’t the time or inclination to educate me, I certainly understand and respect that. I came across your work via the Wash U newsletter; our son is a 2020 graduate.
Thank you for your thoughtful work and your time.
Hi Steve, thanks for your comment and apologies for my delayed response. These are good and complex questions. I cover some related ideas in my book, Confident Pluralism. More here: https://www.jinazu.com/confident-pluralism. Thanks for engaging!
No apologies necessary, John. I do appreciate your response. And thank you for the book recommendation — added to my reading list!
John, I participated as a committee member and as the chair in a number of WASC accreditation visits to religious schools in Southern California. (I was assigned religious schools because I was on staff at a Christian school. We visited and recommended accreditation status on Catholic, Lutheran, Christian, and Arminian schools.) For high schools this accreditation was needed for their students to received credit towards public higher education and a lot of private colleges and universities as well. One way that many of these schools overcame objections to their science classes that taught that evolution was not a viable explanation of the natural world was that these courses were grandfathered in at some point in the past. However, if they were to offer a new course that taught Creationism it would not be approved by the University of California and therefore not counted as a science credit.
My point is that a state could fund students going to these kind of religious schools if the schools met the requirements for accreditation from their regional accreditation entity. If a school did not acquire proper accreditation the state could refuse to fund students who attended. I'm wondering if states like Maine with this problem of not having enough public schools could tighten their accreditation standards that might lead to certain religious schools losing their accreditation. This would not be on the account of their religion courses, but rather science, history, government, English, and other courses that varied too far from state standards.
I think you're right that accreditation plays into these issues. But it's complicated by how normatively fraught so many of these subjects are. There were similar tensions at play in the 1970s and 1980s in establishment clause cases around funding for textbooks--what was allowed, what was too "sectarian," and so forth. And we'll likely see these same tensions in future accreditation challenges.