Finding a Ceiling in a Circular Room: Locke v. Davey, Religious Neutrality, and Federalism
The text of the U.S. Constitution clearly distinguishes religion from non-religion by providing that while Congress may pass laws concerning many subjects and prohibiting many things, it may not make laws respecting the establishment of religion or prohibiting religious exercise. As the distinctiveness of religion is clear from the text, the Court has had no problem concluding that religion, as a subject matter, and religious believers, as a class of persons, are constitutionally distinct. Though not apparent from the text, it is equally clear, and equally settled, that the Religion Clauses tug the government in opposite directions. Noting this tension, the Court has tread the line between the clauses carefully, holding that if the government opposes the establishment of religion too vigorously it will burden religious exercise, and if the government seeks to accommodate religious exercise too liberally, it will establish religion. However, while these propositions — that religion is distinct and that there is tension between the Religion Clauses — are clear and settled, the Court has struggled mightily to reconcile them. That is, the Court has not been able to answer the following question: how differently may the government treat religion from non-religion under one clause without violating the other?This article attempts to answer that question. My answer is inspired and informed by Locke v. Davey, 540 US 712 (2004), a case in which the Court held that at least in certain contexts the Free Exercise Clause permits the government to exclude an individual from a funding program on the basis of religion. In answering this question, I hope to accomplish three goals: (1) to defend the holding and reasoning in Davey; (2) to assuage the concerns of Davey's critics; and (3) to develop a paradigm that grants states discretion over how they partner with religious organizations but still limits states in a way that is consistent with the guarantees in the Religion Clauses. Given the extensive criticism of the Davey opinion, and the normative and practical significance of the question addressed in this article, this analysis is particularly timely and important.
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Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council
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'Dark Knight' tops weekend again (The Hollywood Reporter)
VIDEO: Bruce Wayne made like Bruce Jenner this weekend, as Batman took home the boxoffice gold yet again.
Source: www.hollywoodreporter.com
Why Don't More Public Schools Teach Sex Education?: A Constitutional Explanation and Critique
This article questions why so many public schools do not teach any form of sex education. The answer proposed in this article is that the U.S. Constitution is a part of the problem. This claim is based on the following two premises: (1) the U.S. Constitution almost certainly does not require public schools to teach sex education; and (2) the U.S. Constitution arguably requires public schools that teach sex education to exempt those students whose religious beliefs are substantially burdened by sex education.To illustrate how these two premises might weigh in a school district's decision not to teach sex education, this article analyzes a hypothetical question of how a school district should respond to threatened constitutional litigation over sex education. After Part I poses the hypothetical, Part II analyzes the problem and concludes with the two premises upon which my thesis is based. Based on Part II's analysis, Part III offers the following solution: not to teach sex education. After noting that this is not a solution to the problems resulting from uninformed or misinformed teen sex, Part III then departs from the article's descriptive format and briefly explores, as a normative matter, whether we should break the constitutional constraints that lead schools not to teach sex education. The article concludes with consideration of how the preceding discussion contributes to our understanding of the Constitution and those charged with interpreting it.
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Locke v. Davey
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