February 27, 2004

Locke v. Davey and Beyond

10:00 – 11:30 a.m.
Washington, D.C.

Anthony Picarello, Vice President and General Counsel, the Becket Fund for Religious Liberty; filed amicus brief in Locke case on behalf of Joshua Davey

Marc D. Stern, General Counsel, American Jewish Congress; filed amicus brief in Locke case on behalf of the state of Washington

Ira “Chip” Lupu (moderator), F. Elwood and Eleanor Davis Professor of Law, The George Washington University Law School; Co-director of the Legal Tracking Project of The Roundtable on Religion & Social Welfare Policy

LUIS LUGO: Good morning and thank you all for coming. My name is Luis Lugo, and I’m the director of the Pew Forum on Religion and Public Life. It is my pleasure to welcome you this morning to this timely discussion of the meaning and implications of this very important Supreme Court ruling, Locke v. Davey. For the benefit of those of you who do not know the Pew Forum, we are a nonpartisan organization, and we do not take positions on legislative battles, political debates or even court decisions. So we’re neutral brokers here in this discussion.

In Pew Forum-speak, we call these rapid-response events, but the word “rapid” does not begin to do justice to how quickly this thing came together. Maybe “supersonic” is a little more appropriate. I don’t mind admitting that we were caught completely off guard by the timing of this decision. Is there anybody out there who was not caught off guard by it? (Silence.) That’s an amazing admission for a Washington crowd, that we’re all totally clueless. (Laughter.) If there is someone who expected this now, by the way, I want to talk to you about a little subcontract that we want to give you, because all of our high-priced experts got it completely wrong. They were helping us plan for an event in June, say. We were very, very much surprised by this.

That’s why I’m particular thankful for the Pew Forum staff who literally turned on a dime to get this thing done – very, very grateful to them. To the staff of our sister project and cosponsor of this event, the Roundtable on Religion and Social Welfare Policy – very grateful to them. David Wright, project director of the Roundtable, made his way down from Albany today. Thank you very much. And, of course, great gratitude to our speakers. I’m very appreciative of the fact that you were kind enough to rearrange your schedules so that you could come and enlighten the rest of us, particularly those of us who are not legal scholars, what this business about there being room for “play in the joints” is all about.

That’s the colorful expression that Justice Rehnquist used to describe his basic point that, “There are some state actions permitted by the Establishment Clause but not required by the Free Exercise Clause.” Those are the two joints, the two clauses, and how much room is there in those joints?

Parties on all sides of this discussion already have drawn their own conclusions about what this all means, not only the meaning of the decision itself but what it might mean for other areas in which government and religion come into contact – religious schools, for instance, or the topic of our sister project: what it might mean for faith-based organizations and government relationship to them. So there is lots of room to debate and discuss what this business of “play in the joints” is all about, and that’s why we’re here today.

To get us started, let me very briefly introduce Chip Lupu, who will be setting the context for the discussion and then introducing our panelists and moderating.

A graduate of Harvard Law School, Chip is the F. Elwood and Eleanor Davis professor of law at George Washington, a nationally recognized constitutional law scholar specializing in church-state cases. With his partner in crime, Robert Tuttle, Chip directs the project on Law and Religious Institutions and is the senior legal advisor to the Roundtable on Religion and Social Welfare Policy, which studies the role of faith-based organizations and the delivery of social services.

Chip, it’s all yours.

LupuIRA “CHIP” LUPU: Luis, thank you very much for the kind introduction. Thanks very much to the Pew Forum as well as the Roundtable for putting this together so quickly, so marvelously. Thank you all for showing up on short notice and on a Friday morning when there are other things going on.

I’m going to say a little bit about Locke against Davey, about what the case involved, the issues, its import, the Supreme Court’s disposition of it, a little bit about what it may suggest for the future, in particular for the school voucher movement and for the faith-based initiative, because I think it portends some things for both of them, and then I will introduce and turn the conversation over to our distinguished panelists.

I gave a presentation about Locke against Davey at the National Press Club as part of the Roundtable’s annual report, about three months ago, on the 1st of December, the day before the case was argued. I said then, and I still think now, that Locke against Davey involves extremely simple facts and extremely complex legal issues. The legal issues include interaction among various parts of the federal Constitution: the Establishment Clause, the Free Exercise Clause, and, lurking in the case, some issues under the Free Speech Clause; and it also involves the interaction between state and federal constitutional law. I think most Washington types, journalists, other people who track this area, have in the past tended to focus, for a variety of understandable reasons, on the contours of federal constitutional law. But there are some doctrines in federal law that are receding, leaving more room open for the states to have something important to say about this.

And the case is about exactly that. Mr. Davey challenged whether the states have some room to have church-state policies of a certain character, and the Supreme Court effectively said, the state now, as before, has some room to have church-state policy of its own, separate and apart from what the First Amendment requires. The question is, how broad is that room? How wide is that room? I think we’re all going to talk about that to some extent.

Let me go back just very briefly. For those who are not familiar with the details, these are the simple facts of the case: Washington State has a state scholarship program called the Promise Scholarship. It’s available to low- and middle-income students in Washington State. They must go to school in Washington State, to an accredited college there. They may go to any accredited college, including a religiously affiliated college. They may take courses in theology. What they may not do, and still keep their scholarship, is major in theology. And Mr. Davey co-majored in something called pastoral ministries at Northwest College in Washington State, a major which his school declared to the state was equivalent to a major in theology, and he was therefore disqualified for the scholarship.

He sued, claiming that his disqualification from this scholarship – that he would have been eligible for had he majored in anything else – violated the Free Exercise Clause of the First Amendment, because it discriminated against a certain branch of religious studies. And he made other arguments about freedom of speech as well.

As a matter of legal disposition, he lost in the District Court. He then won a very sweeping victory in the United States Court of Appeals for the Ninth Circuit. The United States Court of Appeals for the Ninth Circuit ruled that the exclusion of theology majors from this scholarship program constituted discrimination against religion, which that court said presumptively violates the Free Exercise Clause of the First Amendment. The state’s defense was, Look, we have in our constitution a provision that forbids us from financing religious instruction, and a theology major, of course, is a very specific and intense kind of religious instruction, and we may not, under our own constitution, pay for that religious instruction. They said, in effect, We have our own version of nonestablishment principles, and that’s why we are excluding this kind of religious studies. The Ninth Circuit rejected that argument. They said, That argument does not suffice to be a strong enough interest to justify the discrimination against Mr. Davey.

Two day ago the Supreme Court reversed the decision by a vote of seven to two. Surprises here? Absolutely. The decision came – as Luis suggested – the decision came very quickly. None of us were prepared for it. We thought it was going to be a real wrangle, that the Court was going to be more divided, and this decision was not going to show up until May or June. The seven to two surprised us. The chief justice in the majority surprised us a bit, although the more I thought about it the more I thought it was less of a surprise than I think perhaps I originally believed. And let me say a little bit about why it’s less of a surprise than many people thought, and I think that will then sensibly lead me into some observations and questions about the opinion itself.

The chief, though no special friend of nonestablishment principles – strong separationist, nonestablishment principles at the federal level, he has not been on that side of the argument at the federal constitutional level – nevertheless, is someone who has always had great respect for states and the autonomy of the states, including within their constitution, and, yes, protected the states against various kinds of federal legislation. And here this is a case that involved the question of whether state constitutional law had to give way to federal constitutional law. And his concern about protecting the states against judicial as well as legislative constraints definitely influenced him.

The other piece I think that influenced him perhaps even more is that he has consistently defended government discretion when it comes to spending money. It’s one thing to regulate coercively and to discriminate against religion, but the chief has persistently argued that when the government spends money it should have very, very wide discretion to choose among the beneficiaries of its largesse, even when there may be some constitutional rights involved – like the right to terminate a pregnancy, or the right to free speech, or, in this case, the right to study theology – in the background.

Nevertheless, even if you take the view that he takes, that the state ought to have some room when it makes expenditure decisions, it still has to have a good reason to decide to pay for secular studies but not religious studies or theological studies. It has to have a reason that the Constitution respects for this particular kind of discretionary choice among potential majors.

And that brings us to the question which is at the heart of Locke against Davey: To what extent does the Constitution permit the states to separate themselves financially from religion and religious institutions beyond what the First Amendment’s Establishment Clause already requires? And let me say a little word about that question, about what the First Amendment requires and doesn’t require, because it’s an important piece of the backdrop here.

Back in the middle 1980s there was a case called Witters against Washington Department of Social Services. The Witters case involved a voucher-type program similar to the Promise Scholarship; it involved tuition grants, aid to the blind in Washington State. Mr. Witters wanted to take his college tuition grant and use it to study for the ministry. And there was a challenge made under the Establishment Clause of the First Amendment to the federal Constitution. And the Supreme Court said unanimously, listen, this is indirect financing. This is the choice made by the beneficiary, Mr. Witters. This is not the state deciding to pay for educational programs in the ministry. This is a student selecting out of the menus of choices and courses a program in the ministry, and the First Amendment’s requirement of church-state separation, whatever they might require if this were direct financing, they do not block Mr. Witter’s choice of a ministry program with his state tuition grant. So the state of Washington, like other states, was not required to exclude study for the ministry from its scholarship program. It was free to include this kind of study if it so chose.

So the question in Locke v. Davey, then, was, What discretion did the state have to exclude, if it chose, on the basis of its own constitution, certain kinds of religious studies? And the Court said, by this vote of seven to two, Yes, indeed, the state does have such discretion, especially when the issue is state support for training in the ministry. And the Court’s opinion invoked a long line of historical precedent and concern, back to the founding in which, in the very earliest state constitutions there were state constitutional provisions written, designed to block state financing of clergymen’s salaries and other support for the ministry.

There is still, of course, the very large question lurking after Locke against Davey of how broad or how narrow the state’s power is to have a church-state separation policy broader than the First Amendment requires.

Let me suggest four layers of breadth of state discretion, different kinds of choices, expanding as they go along, just to give you a flavor of the kinds of issues that are at stake here.

The narrowest example is Locke v. Davey itself, where the state says, We’ll allow these scholarships to be used at religious schools. We’ll allow them to be used for religious courses, but not for theology majors, not for people who are preparing for a career in the ministry. Those were the facts of Locke v. Davey, and the Court says the state may exclude people out of that historical concern of separating itself from ministry training.

Suppose the state took one step broader and said, Listen, we will give these scholarships, but we will not let anyone use them for the study of even one theology course. The state constitution says no money for “religious worship, exercise, or instruction.” So what if the state said, If you have one of these scholarships and you take three of your 10 courses in theology, we’re only going to pay you 70 percent of your scholarship? That would also be the state distancing itself from the financing of religious instruction, although, as you could see, that sort of policy is very complicated to administer because it would require the state to decide which courses are devotional theology or religious courses and which courses are not, and sometimes it would be close, and difficult questions in which I think the state would not want to entangle itself.

The third and more probable kind of exclusion – and this would affect issues of school voucher programs as well as programs under the Faith-Based Initiative – would be if a state like Washington State said, We are going to have a voucher program for elementary schools or secondary schools, substance abuse treatment or some other sort of social service, but we are going to exclude all the schools and all the providers that have religious instruction or religious training or religious worship as part of their enterprise of education or the provision of social services. Now that is a considerable step beyond what Washington State has done, but nevertheless, that would be the state saying, Listen, we know, under the Witter case and under the Cleveland voucher case, that we are free to include these kinds of programs, including religiously thick programs, in our voucher program, but we think under Locke against Davey we are also free to exclude them because of their religious content.

And fourth, just to make this one step broader, suppose a state said, Listen, we don’t want to be looking over the content of the programs at religiously affiliated schools or providers. If they are religiously affiliated, without regard to the particular content of their program, we are going to exclude them from our voucher programs for schools or social services. That would be the broadest exclusion based on some overall character of the institution rather than the character of the particular activities that the state was financing.

Now, does the state have discretion as broad as that step number four? Perhaps, perhaps not – that’s a question. But in this regard, let me point out one important part of the Washington State story that I think the Court’s opinion very much focuses on but which had been substantially overlooked in the discussion of Locke v. Davey up till now: Washington State has two – not one but two – constitutional provisions having to do with its relationship to religion and religious institutions. The one that Locke v. Davey was about – Article 1, Section 11 – is the Religious Freedom provision of the Washington State constitution, which is a more traditional, old-style, turn of the 18th century, Virginia-Pennsylvania-New-Jersey-framing-era provision: “Absolute freedom of conscience in all matters of religious sentiment, belief, and worship shall be guaranteed to every individual.” And it goes on several provisions. And then it says, “No public money or property shall be appropriated for of applied to any religious worship, exercise or instruction.”

This is part of a general free exercise, nonestablishment package, and it’s focused on worship, religious exercise or instruction. The broader provision in the Washington constitution, the one that fits the description of the so-called Blaine amendments from the late 19th century – I know some of our other speakers are going to talk about the particular issues arising out of the Blaine amendments – was not involved in Locke against Davey. That one says, “All schools maintained and supported wholly or in part by public funds shall be ever free from sectarian control or influence.” That part of the Washington constitution is a classic Blaine amendment, part of the moment in the late 19th century inspired by James Blaine to be sure to block the payment of public funds to sectarian schools, and in particular at that time, Catholic schools in the United States. So there’s a complicated history we’ll hear more about from our other speakers with respect to the Blaine amendments and what still might be open for argument about the constitutionality of those.

Let me say one more word about issues in Locke v. Davey, and then I’m going to introduce our other speakers.

There was lurking in Locke against Davey a free speech question. The argument had been made that the Promise Scholarship program constituted a public forum, like a park or room that the state makes available for speech. And the argument had been advanced that when the state puts up money for scholarships, it’s putting up money for the study of various subjects, and it therefore may not discriminate against particular aspects of speech, subjects of speech, or viewpoints on speech. And this was a very important argument in terms of the school voucher movement and the Faith-Based Initiative, because the level playing field argument that the president has advanced and that’s behind the Faith-Based Initiative would have been much enhanced and reinforced if the Court had said, Yes, when money is made available for some sort of social service or educational programs, the religious perspective on whatever is going on may not be silenced or excluded by the nonpayment by the government.

In Footnote 3 of Locke against Davey, the Court very much puts down this theory. It says, Listen, this wasn’t a forum for speech; this was a scholarship program for low- and middle-income kids, and we cannot treat this as an attempt to create diverse viewpoints in the public forum. This isn’t a speech problem, and these kinds of money systems are not going to be treated as speech problems by us.

Much more to say about Locke v. Davey, and I’m going to turn to my co-panelists and let them say it. We’re so privileged to have with us today two of the finest church-state lawyers, as well as scholars, in the United States. Speaking first is going to Marc Stern. He is the co-director of the Commission on Law and Social Action of the American Jewish Congress. He is a graduate of Yeshiva University and Columbia Law School. He’s been with the American Jewish Congress since 1977, involved in litigation, legislation, public testimony, friend-of-the-court briefs in the Supreme Court, including co-authorship of a friend-of-the-court brief on the side of Washington State in Locke against Davey.

Following Mr. Stern is going to be Anthony Picarello. Anthony is the Becket Fund’s vice president and general counsel. The Becket Fund is a public interest group devoted to religious liberty litigation. Anthony will probably say more about that, the purposes of the Becket Fund’s enterprise. He went to the University of Virginia Law School, was on the Law Review. Before that he received a Master’s degree in religious studies from the University of Chicago and an honors Bachelor’s degree from Harvard University. He has also lectured, written and litigated extensively on issues of religious freedom, and he, on behalf of the Becket Fund, also co-authored a friend-of-the-court brief in Locke against Davey.

So I’ve tried to give you a kind of split the middle version of Locke against Davey, but these gentlemen perhaps are interested in getting off to one side or the other of the middle, and I think we’ll hear a bit about that.


SternMARC D. STERN: I sat and listened to Professor Lupu and tried to figure out what I could say that he hadn’t covered. (Laughter.)

Well, there’s good news and bad news in Locke against Davey. The good news is that I have employment for the next 15 years until I’m scheduled to retire. (Laughter.) The bad news is that I’ll be litigating what Locke v. Davey means until I retire.

In some ways the case is more important for what it did not do than for what it did do. Had Mr. Davey won his case, church-state relations in the United States would have been in either-or mode: either the Constitution forbids the provision of aid to a religious enterprise or it requires the provision of aid to a religious enterprise. Now, that would clearly be a very different landscape than we have been accustomed to, and both Anthony and I would be out looking for jobs. So that’s the shoe that didn’t drop.

Unfortunately, the opinion is classic Rehnquist: a listing of facts in the case, woven together very artfully – he’s a wonderful storyteller – and you haven’t got a clue as to which facts he thinks are really important and which facts aren’t. Well, that has the advantage of allowing him the next case up, or two cases down, to pull out a fact that was sort of trivial in the first case and it all of a sudden becomes the crucial factor in the next case. Well, when you’re chief justice of the Supreme Court, you can do that. The rest of us are left puzzling.

I think Chip is right that it is a mistake to see this only as a church-state case. Federalism is clearly present, and there was a good deal of hypocrisy all around in the briefs filed in this case, when liberal groups that had always gagged at the idea of federalism were all of a sudden boosting the notion of state autonomy, and conservative groups that are always boasting about the states as laboratories of experiments were all of sudden seeking centralized constitutional control. Because I live in New York and don’t know any better, I actually conceded in our brief that this was somewhat hypocritical – (laughter) – but was happy to point out that the other side was hypocritical, too. (Laughter.)

You’ll notice that the word “federalism” does not appear in Rehnquist’s majority opinion. And Scalia is in no place to talk about it either, because here is this great paragon of federalism urging a centralized constitutional decision.

Secondly – and I think it requires a little more underscoring than Chip gave it – I think the chief justice wrote the opinion because he is the master of this idea that government funding can come with all sorts of conditions. This is quite a change in constitutional law. When I came out of law school, that was considered an unconstitutional condition. There was a privilege that the government granted. It could not condition that privilege on yielding some other constitutional right. In Rust v. Sullivan, the abortion case, which is the best known but not the first of these cases, that argument would lead you to say since you have a right to an abortion, the government could not condition grants for other purposes on a waiver of that constitutional right. Justice Rehnquist brushes that aside in Rust v. Sullivan.

Earlier, in a case of taxation with representation – it was actually, I guess, whoever the secretary of the Treasury was at the moment. In the taxation with representation he said the same thing about the preference for veterans being able to engage in more advocacy than other not-for-profit groups, and he said that’s just the condition the government can legitimately employ. I’ve never understood the line between that rule and unconstitutional conditions. I really don’t believe there is a line.

For instance, it’s constitutional to tell a Planned Parenthood clinic, You can’t get our money and provide abortions. It is unconstitutional to tell a lawyer for legal services, You can’t take our money and sue the government. The only line I see in those cases is that judges are lawyers and understand why that’s a burden, but this line is out there – Rehnquist is a proponent of it. What’s surprising is that people like Stevens and Souter and Ginsberg, and one or two others who have had hesitancy about this line, sort of let Rehnquist get away with it in this opinion without so much as a concurrence. Whether that means they’ve given up the battle or they were happy to get rid of this difficult case, I’m not sure, but that will be interesting in the future.

The other quick observation I would make is we have now two lines of totally inconsistent and, I think, irreconcilable lines of authority about the relationship between the federal Constitution and state constitutions. In Widmar v. Vincent, which is the first of the cases in which religious speech sought equal access to public spaces – the first of the modern cases actually – the University of Missouri’s defense was, Okay, it may not violate the federal constitution for us to allow this religious group to meet in an empty classroom after hours, but it would violate the more stringent – which it clearly was – state constitution of Missouri. And Justice Powell sort of blows that aside and says, Well, whatever interest the state has in nonestablishment is adequately satisfied by the federal Constitution, so the incremental benefit is not sufficiently important – just to be a compelling interest to justify the burden on the free speech rights of the students.

Now, the Court has been ambiguous. Some people read Widmar saying, an Establishment Clause violation might be enough to justify an imposition of Free Exercise, may not. In – I have a block against the name of the case because it’s recent.

MR.: (Off mike.)

MR. STERN: No. The Albany public school case.

MR.: The Good News Club?

MR. STERN: Good News, yes. In Good News, Thomas suggests that nothing can stand in the way of a free speech clause in the state, and the Establishment Clause doesn’t count at all. But Widmar, in any event, clearly stands for the proposition that the incremental value of stricter state constitutional provisions doesn’t count for very much. In this case, without so much as a notation of the existence of Widmar, the Court holds exactly the opposite. Now, this is very good if you’re writing law review articles, if you’re a philosopher. If you’re a practicing lawyer, you want to just grab the nearest wall and bang your head against it. (Laughter.) And I really don’t know what is going to come of that.

There is a way of distinguishing. It’s simply that the likelihood of anybody seriously mistaking the University of Missouri endorsing everything that students said after hours is so small as to be vanishing. That’s not the case with aid, particularly given the history of our constitutional system and its inhibitions against government aid to religious enterprises. But that’s a factual distinction that easily could have been made – it would have made life easy – and the Court doesn’t make it. So I don’t know what we are going to do with that problem. Anthony and I will just litigate it forever. And then Rehnquist will write an opinion saying he doesn’t understand what the conflict is; it’s all really very simple. (Laughter.) Again, it’s great work if you can get it.

Let me jump to where I wanted to end, but let me get it out of the way now. As I said at the outset, what might have been in this case is an absolute either/or proposition. Either you’re forbidden to aid religion or you must provide aid on equal terms to everybody else. That’s part of the development, which, again, really begins with Widmar, towards substituting a reading of the Establishment Clause that reads the Establishment Clause as a particular rule about the relationship between religion and government, and exchanging it for an egalitarian reading of the Religion Clauses. Religion Clauses became a sort of equal protection clause written for the relationship between religion and government. So equality – treating the religion the same as nonreligion or its competitors – becomes the touchstone. I’ve always thought that was completely ahistorical – a lot of textual difficulties with it – but again, I’m not on the Supreme Court, and they are.

The problem with equality is that it is not easily cabined. As anybody who has observed our society over the last 30 or 40 years knows, once equality gains a foothold in a particular area, it quickly sweeps away everything in its path, and that’s happened with the Religion Clauses. So from this old rule of, You can’t aid religion altogether, we now come to the point where it’s a credible argument that, You must aid religion equally with everything else. Well, that’s had a parallel effect on the free exercise side, and Employment Division v. Smith in 1990 embodies that. It’s interesting: If you look at the justices, it’s an exact parallel. The justices who wanted equality and establishment, which would have allowed greater government into religion, also said that that ought to be the test on the free exercise side, and therefore religion doesn’t get special protection when government regulations interfere with religious practice.

Well, if that’s the rule, then it’s hard to see how you can even have permissive accommodation; that is, accommodation that’s not required by the constitution but tolerated by it. Now, Scalia in another ipsi dixit in Employment Division v. Smith, having bought this egalitarian approach, nevertheless says, But you can favor religion if you want. In fact, the lower courts since then have struggled with how that can be, and in fact, the Third Circuit in a zoning case, has come pretty close to saying that favorable zoning rules for churches are unconstitutional. There have been challenges around the country to the Religious Land Use and Institutionalized Persons Act – I finally got that down, because the acronym is unpronounceable. There have been serious challenges including one circuit that has held that special requirements for accommodation of religious practice are unconstitutional because it’s more than equal, which means unequal treatment of religion.

Had this case come down the way most of us thought it would come down – which is, that if you may fund, you must fund – then the conclusion would have been irresistible on the other side, that if you’re not required to accommodate religion, it would be unconstitutional, because there would be no “play in the joints.” You would have mirror-image clauses. So for those of us concerned with free exercise – not that we avoid the bullet on the Establishment Clause side but – we’ve gotten, I think, a fair amount of relief on these challenges to free exercise protection.

My own reading of the opinion is that the Court was suggesting that many of these battles belong in the legislature and not in the Court. That is, exactly how much aid ought to go to religious institutions and how much space there ought to be between the government and religion? Is it a policy decision best made by the legislature?
Now, of course, Rehnquist says none of this in the opinion, so you’re left to speculate as to whether he might mean it, but this, it seems to me, is a reasonable reading of the opinion.

And there are two questions that immediately come to mind, or two points. The first is it’s an exact reversal of where the Supreme Court started out in the modern, or the second, wave of Establishment Clause cases. In Lemon v. Kurtzman, when the Court laid down the famous three-part test for detecting Establishment Clause violations, the Court said that one of the purposes of the Establishment Clause was to avoid embroiling and entangling the legislatures in political disputes about who gets what and how much money and to which benefactor. On any reading of this week’s decision, that’s now really in the garbage can, because the Court has said, these are policy matters. However broad or narrow the opinion – and as I’ve said, we’re going to be fighting about that for a while – there is now a class of cases in which the battle has to take place precisely in the legislature. It’s 180 degrees from where the Court began the first round of aid to parochial school cases, but the second round of Establishment Clause cases.

The remaining question, of course, is how broad or how narrow the opinion is. There are lots of little factlets in the opinion that would allow this to be read very narrowly: the fact that – which Rehnquist emphasizes two or three times – deeply religious institutions could participate; it was just this one area that was not involved. It is difficult to believe that some of the seven votes that Rehnquist got really believe that those facts are alone determiners. But, again, they didn’t write opinions, so we don’t know, but it seems, based on what they’ve done in the past, unlikely in the extreme, for instance, that Justice Stevens thinks that a parochial school is in large measure different than a course in theology. So it’s a little bit difficult to know how broad or how narrow this is going to prove. And we’ll just litigate it. I mean, I don’t think there’s anything we can tell you today that will do anything but make us look stupid a year or two from now. (Laughter.)

The second question I want to raise in this regard is that there’s a real question in my mind whether the legislatures are up to having these debates. There is a book written by a man named David P. Currie, which is a fairly lengthy, scholarly book on the Constitution in early congressional debates. And if you look at that book, there are really wonderful materials for finding out what the Constitution meant and what people thought about it, because people in Congress had informed discussions about the Constitution. The notion of an informed discussion in Congress about anything, let alone the Constitution, is ludicrous, and it’s ineffable about the state legislatures. They don’t have the staffs, they don’t have the inclination, they’ve been trained that anything controversial was something that they ought not to talk about. And the real question is, Well, now the Court’s dumped it on the state legislatures and the Congress; can we expect much? And I must say that in all the years I’ve testified before Congress, I’ve met one or two senators who have some clue as to what’s going on. The rest are sort of clueless, even when they’re on the Judiciary Committee, which is the best of the lot. So I think that’s a real question.

And now for my last two points. I would call attention as well to Scalia’s approach to the Free Exercise Clause. Scalia protests that this is facial discrimination, and it ought to involve all that comes in the wake of facial discrimination against religion. But Scalia’s conception of discrimination is so formalistic as to be useless to those of us who are struggling with this in the field. It’s true, in the aid area it has some bite, but in most places it doesn’t. His idea of religious discrimination is a statute that says, we’re discriminating against religion. It’s the famous line from Alice in Wonderland – you know, it’s a cake, and it has a sign on it that says “Cake.” You know, this would be a serious problem if we were in the business of evaluating whether something had the effect of discriminating along religious lines, but since we’re out of that business, all we’re left with is formal neutrality.

Well, fine. In this case there’s no formal neutrality. Conceded. But think of what that wipes out – and this in an opinion in which Scalia protests that the Court has signed up on one side of the pop culture debates about the role of religion. Any idiot, which includes most of our legislators, can write a neutral statute designed to cut out religion without even breaking a sweat. It’s not very hard. You know, a classic case is Goldman v. Weinberger, the yarmulke case, in which the Court treats an Army rule that says that everybody indoors is hatless. Well, you know, for a Protestant that’s a perfectly neutral rule. If you’d ask me, that’s not – I would never write a neutral rule like that. I’d write the neutral rule, everybody keeps their hat on inside – (laughter) – and finish. They’re both neutral rules. But Scalia’s formalism, it seems to me, is irreconcilable with his concern – which is real and legitimate and shouldn’t be brushed aside – with the role of religion in our society. He’s boxed himself in, but there we are.

I would agree that the Blaine amendment question is still open. I’m less taken than some of my law school colleagues who think that which one of these two you point to makes a difference, if they both emerge out of the same fact pattern. Where Anthony and I disagree – without stealing his argument, though it’s fun to do – the question for me is, clearly there was anti-Catholic bias leading in the 19th century to the development of these Blaine amendments. There was also a very different Catholic Church, and if you look at the encyclicals of the pope and you read them as anybody reading them would read them – and as, in fact, even Catholics in private communications admitted they would be read – they suggested the Catholic Church did not believe in the idea of church-state separation, that it believed in the duty of the government to support the one true faith. And it seems to me that you can’t make out the case that the Blaine amendments are motivated by sheer raw bigotry of the kind none of us would condone, but at least in substantial part also by a legitimate concern that there was this other church out there that wanted to reorganize the way society was done in ways that people did not want to have happen. And I suggest that a hundred-and-some-odd years later the Court’s not going to be able to figure out which is the bigger piece, and I think the Court will shy away from invalidating Blaine amendments. But let him make his case first before I knock it down.

ANTHONY PICARELLO: Good morning. When we were getting ready up here, Chip asked me, who wants to go first? And I was kind of indifferent, but now I know there’s a good reason to want to go first, or at least to not go last: A lot of people will have said a lot of the things that you want to say – (laughter). What I’m going to do instead is call the audible here and try to be as responsive as I can to the kind of things that were discussed, because I think it focuses on a lot of the issues that are really the most important for the longer term.

I think one of the things that we can take away from the presentation so far is that Locke against Davey is a decision that takes a confused and confusing area of law – the Free Exercise Clause of the First Amendment – and then confuses it some more. I look at this opinion, and I just have a hard time making heads or tails of it for a number of different reasons.

There was a lot of talk about what Justice Rehnquist was doing in the majority, and, frankly, it doesn’t make sense to me, notwithstanding his generalized concern for federalism, notwithstanding his respect for states. I have what I might call a more legal realist, or perhaps even cynical, reason for believing – or, I say, for understanding – his involvement in the opinion. It goes something like this: As the chief, he gets to vote last in conference. As the chief, he also gets to pick who writes majority opinions when he’s in the majority. So he’s sitting back there, you know, it goes from junior to senior. He sees that O’Connor and/or Kennedy have already gone and made for a solid majority against. What that means is that Stevens gets to write the opinion, or at least decide who writes it and probably will write it himself. Justice Stevens has never met a religious freedom case that he doesn’t hate. Take a look at the Santa Fe opinion which – again that was a good example of a case where, on the facts, I agree that the plaintiff should have prevailed, but the opinion – just a doctrinal standpoint from someone generally concerned about maximizing individual religious expression – is just not all that good. So if I’m the chief, I say, Well, here’s my choice: Take control of the majority opinion or add my name to Scalia’s dissent or write a separate dissent of my own. Where do I add more value? So that’s my own view of exactly what explains this to a greater degree.

The other reason I think he’s in the majority is the doctrinal points that come out in the course of this opinion. We have an opinion written by the chief, who joined in the Smith opinion, but seems maybe to even breathe some new life into substantial burdens jurisprudence. We have him contra his position in Smith, as Marc pointed out. There’s also language in here that suggests that under the Free Exercise Clause animus is what matters. It’s almost like an angry legislator requirement: you’ve got to have somebody who is mean passing the law or administering the law before you get a free exercise violation. Rehnquist joins Scalia in rejecting that proposition in the Lukumi decision, and Scalia beat that drum hard here again. That was an important point in his discussion, and Rehnquist went the other way.

And by the way, here’s another little bit of evidence that there was a reason why the chief wanted him – you have Souter, Ginsburg, Stevens and even Breyer signing onto an opinion that says, Well, Washington’s Promise Scholarship goes to religious and nonreligious alike. No problem under the Establishment Clause. He slipped him a mickey. (Laughter.) It recalls for me my favorite aphorism from a law professor of mine: Stupidity at this level requires explanation. People this smart don’t make mistakes like this. There are reasons for them.

In any event, I want to talk about some of the other points that Marc made, and then I want to kind of go back to one of the things that I planned on focusing on, which was the Blaine amendment, and that’s an important piece.

Let me step back and talk about this in the context of the Becket Fund and what we stand for. We’re a bipartisan public-interest law firm that’s dedicated to the free expression of all religious traditions and the equal participation of people of faith in public life and public benefits. The “equal participation in the public benefits” part is where our ox got gored here. The other thing to keep in mind in connection with our mission and in connection with the work we’ve done both with and against Marc, is that we’re sort of with Marc in terms of rah-rah free exercise. He mentioned the Religious Land Use and Institutionalized Persons Act. We spent a lot of time litigating along with him under that, and we’re looking for broader protections of religious freedom for individuals and institutions, contra Scalia, Rehnquist and Thomas, in many respects.

On the Establishment Clause side, though, we are concerned that establishment not devolve or, I should say, degenerate into discrimination. In other words, you can’t do – at least in our view – what it is that Washington State did here, regardless of what the history was. You can’t give a benefit to everybody and rescind it only for religious people or people who want to use the benefit for a religious purpose. So in a sense, we think of it as perhaps a bit different than Marc does. The core, primary value is individual and institutional religious expression. A limitation on that and also something that reinforces it is the Establishment Clause value. It’s not some artificial symmetry; I agree with Marc about that. It shouldn’t be this kind of formal neutrality. I think that is a bad formula. I think it does create problems. But it’s a good limitation on establishment doctrine, and it’s a good, important, baseline principle for what the Free Exercise Clause ought to do, but there should be limits on religion getting the back of the hand – incidental burdens on religion. That’s also important, and there, again, that’s where we find ourselves in agreement with Marc.

Corresponding to them, some of these federalism issues are a little bit lost on us. In other words, as far as we’re concerned, we’re not all that federalist, if federalism means localism, localism uber alles. I mean, that’s not our rallying cry. It hasn’t been. What we’re interested in is making sure that these kinds of federal constitutional protections get vigorous enforcement, even as against the most local forms of government where, frankly, as Federalist 10 warns, you can have capture by factions, including factions that don’t like people because of their religion.

So I don’t think really the choice here presented to the Court was one so starkly either/or as Marc puts it. I don’t think that it was necessary to choose either the Scalia formulation or the old school “religion gets special latitude but religion also gets special burdens.” I think there’s a way in between those two. Similarly, I think there’s a way in between on the accommodation question. It doesn’t just pertain to funding but also to accommodation.

I want to focus a little bit on the language of the opinion. Chip pointed out that the Court emphasized the distinction between the provision that’s language is more closely linkable to the Promise Scholarship program, on the one hand, and the true Blaine amendment on the other. There is an important distinction there. One of them is traceable to the founding. The other is traceable to the history of the mid- to late-19th century, culminating in the proposed federal Blaine amendment that barely failed, but nonetheless caught fire and ended up in about 35 or 37 state constitutional amendments. You haven’t heard about them in a while because, frankly, they’ve been more or less dead letters so long as the federal Establishment Clause has been active. Now, after the Zelman decision especially, Blaine amendments come into play to a greater degree. It’s okay under the federal Establishment Clause, but if you don’t like vouchers, if you don’t like charitable choice, the Blaine amendment is going to be your weapon of choice to try to get it struck down in court, and in some cases it may be your only legal weapon to go after it. So that’s why these are high-stakes issues.

In our view, after Locke, they are still vulnerable. The Court was very explicit about the fact that it was not rendering a decision [on Blaine amendments]. The Court actually gave a little bit of a nudge for these kinds of claims going forward to the extent that they focus on the history of each particular amendment. Let me put it to you in other terms. The kinds of arguments that could be leveled against Blaine amendments can be divided into two general categories. One is an ahistorical argument that basically says, You know, regardless of where this law came from, right now in the present day, you’ve got a law that says if you give a benefit to everybody, you’ve got to take it away just for the religious people. Without regard to history, that’s religious discrimination. That’s one argument.

Another argument is, This law was passed however long ago precisely to specially burden one, or even all, religious groups, but it was designed for the purpose of specially burdening religious groups. You’ve got mean people here. You’ve got the angry legislator requirement met. And even now, to this day, it continues to be interpreted and applied along those lines. That’s a distinct argument. That second argument still has life. The first argument is more or less dead in the water. It’s at least dead in the water – and I guess so is the historical argument – when it comes to the type of amendment that the Court specifically addressed.

Some have called those kinds of amendments – which are again more legitimately traceable back to the founding – “no compelled support” amendments. When they draw their language from it, they can claim that pedigree. At the same time, a lot of times they were passed for the same purposes as the more formal Blaine amendments, but that’s – I was going to say that’s an argument for another day, but, frankly, it looks like the Court has resolved that argument already. It’s made a clean distinction between the two. So no compelled support amendments – it’s going to be difficult to argue that they’re unconstitutional. True Blaine amendments – still very vulnerable, and that’s an important part of what we do at the Becket Fund. We have two cases pending, and we will have more cases pending, I assure you.

Now I also wanted to respond to Marc’s point about the type of hostility to Catholicism that gave rise to the Blaine amendments. He had said that it was a different Catholic Church. Arguably. Arguably not. More importantly, that is an argument that the Court should not be engaging in itself. At the time, American Catholics protested vigorously against the suggestion that they were unpatriotic or somehow risking running afoul of church teaching in being authentically American and following along the lines of the American experiment. But the American Catholics proved to non-Catholic Americans that they were actually better interpreters and predictors of where church doctrine was than their detractors. Again, there was a lot of paranoia at the time about what the church’s teaching was on questions of church-state separation, in part because the church’s teachings at the time were directed mainly at the French, but more broadly, at the situation in continental Europe. And there was an important distinction between what was going on there and what was going on here.

So to begin with, that fear was unfounded. It was unfounded at the time. Folks were told it was unfounded at the time, but there was a bit of an unrelenting suspicion about whether it was founded, and that was one of the reasons why you had this near panic type of situation. But let’s just say for a minute that the Protestants got it right about what the Catholic Church taught. Let’s just assume that for the sake of argument. That cannot be a basis for government action. That cannot be a basis especially for the government action of either saying these doctrines are wrong – government can’t pass laws saying that. And also, if there is even a legitimate fear of Catholics, say, wanting to chuck the Establishment Clause entirely, wanting to have an official state-church, can you pass a law that stops picking up their garbage? No, of course not. Can you deprive them of other government benefits? Can you exclude them from welfare benefits? No. Can you single them out for exclusion from otherwise available government funding for education? Equally no. The bottom line is you cannot single them out for special disfavor in civil matters because you disfavor their beliefs.

This is one of the things that has been a little side dispute going on. It was a little interesting sideshow in the three-ring circus. The parties were focusing on what I call the ahistorical argument – the snapshot in time argument: Everybody gets the benefit; you pull it back just for the religious people. Game over. And they didn’t want to get into all this history. You know, the amici were kind of shooting back and forth at each other about what the history was and -

MR.: (Off mike.)

MR. PICARELLO: What’s that? Yeah, exactly. We got a footnote. Yeah! (Laughter.) So -

MR.: You’re a law professor wannabe – (inaudible.) (Laughter.)

PicarelloMR. PICARELLO: That’s right, exactly. Exactly. Footnote seven. So the bottom line is that this is something that can be traced out and broad outlined in our discussion here, but if you’re interested in getting into the details of the debate and citations and things like that on this kind of dispute, I invite you to take a look at our respective briefs. Ours is at our Web site becketfund.org [http://becketfund.org/litigate/LockeVDaveyAmicusBrief.pdf]and I’m sure Marc’s is available as well [http://ajcongress.org/clsa/davey_v_locke_brief.htm]. [A comprehensive resource page with links to all briefs on both sides can be found at http://www.pewforum.org/school-vouchers/locke/.]

I’ll end on that point and invite your questions. Thank you.

MR. LUPU: Thank you, Anthony.

MR. STERN: Chip, can I have two minutes?

MR. LUPU: Can you have two minutes? You can have one minute, because I know people have questions, and I want to make sure they get their opportunities to ask them.

MR. STERN: All right. One thing that I know Chip and I agree on is this is an individual grant case. Everybody who’s eligible gets the grant. This doesn’t touch the question of government discretionary grants, where the government chooses which of one of several providers makes a distribution beyond that. That’s a whole different category of cases and is not affected one way or the other by yesterday’s decision.

Secondly, the fact that Rehnquist writes the opinion and emphasizes the line of cases dealing with the ability of the government to impose conditions on otherwise constitutionally privileged activities, augurs very ill for those church groups who are going to be upset with the conditions that will come with charitable choice and vouchers. For example, the D.C. voucher bill contains a ban on any school participating which discriminates in admission, which, as a practical matter, excludes every Jewish school from participation. And since Rehnquist writes the opinion in terms of the ability of the government to condition government money, the ability to resist those conditions is greatly weakened.

Without reciting the whole history, there are perfectly good Catholic historians who read Catholic doctrine the way I do. And finally – and I think this is the more important point – it is true that the government can’t say whether the Catholics were right or the Catholic Church was right or wrong about the way society ought to be ordered. That’s not to say – in my view, and it’s a very different thing to say – that the government can say you can teach it, but we’re going to make sure you can’t take over the government and do it. And if you think, for instance, of sharia law – if you passed a law saying that no state may stone an adulteress wife, in the context of today’s world, that is aimed at Islam, and it seems to me is perfectly constitutional, at least if you cast it in neutral and broad enough terms.

MR. LUPU: Thank you, Mark. All right, it’s my job to recognize people who are out here who may have questions for any or all of us. And I see – (inaudible) – please identify yourself by name and if you have an institutional affiliation please recite that as well.

NATHAN DIAMENT: Nathan Diament, Union of Orthodox Jewish Congregations. I have a question for Marc. Picking up on your point that essentially what the Court has done here is throw the question to the legislatures, where is the outrage in the civil liberties community over the fact that the things that were put into the Bill of Rights were supposed to be things that were so foundational and fundamental that we put them in a Bill of Rights, so that they’re not subject to the whim of political majorities and the legislature? And here is a Supreme Court with an overwhelming majority saying religious liberty is something that we’re going to make contingent to the whims of the legislature in a way I would say is very similar to what they did in the Smith case, which did cause outrage in the civil liberties community.

MR. STERN: Well, you can’t blame the civil liberties community for the fact that we’ve gotten to the point where equal grants and private choice are constitutional, because if you’d ask the civil liberties community, those grants are all an establishment of religion when they end up benefiting religion. Admittedly it’s an opportunistic argument you’re making at this point, but we didn’t get here because we wanted to be here. And then there’s this question, do we go further?

Secondly, I have this visceral reaction when people talk about civil rights or the right to, as if there was some Platonic ideal of these rights that if you’re only smart enough, we could figure out exactly what the perimeters of that right were. The very issue to be decided here is how broad the right to free exercise is. Does it include a right to be subsidized? And if you think it does, then the question is, if the government has a printing press and maybe pays some people to express ideas, does it have to pay everybody else to support countervailing ideas? Rehnquist makes this point very powerfully in taxation with representation. So, yeah, there’s hypocrisy on all sides. Yes, you could argue it, but the fundamental problem is, we’re talking about what we define as a right, and if you don’t define the right to a subsidy as a right, then there’s no call for outrage.

MR. LUPU: I want to add a word in response to the question from a slightly different angle, and maybe to take a little issue with what you said, Marc, earlier, about how this problem has now been thrown to state legislatures. I think that is to some fair extent true, but it’s not completely true. Remember that this case was not simply about Washington State legislative or administrative decision to exclude theology majors from the scholarship. That was part of it, but it had state constitutional law sitting behind it, which means that in states that have Blaine amendments or no compelled support for the ministry amendments – now sometimes legislators will say, Oh, we would like to fund this voucher program, but we may not – see our constitution. Some states will do that. Or some of them will say well, Let’s do it anyway. We think it’s a good idea; it doesn’t violate the federal Constitution.

And then somebody like you or somebody from the People for the American Way or somebody else may bring a lawsuit under that state constitution and say, Well, even the legislature has decided to include religious participants; we think the state constitution bars that. And we know that in Florida and other places exactly this kind of litigation is going on, where the state courts are going to be asked to interpret their own state constitutions and decide to what extent they permit legislatures to include religious providers when they so decide. So I think this is a multi-institutional conversation that’s going to go on for some time. And, no, I won’t let you respond to me–

MR. STERN: Okay.

MR. LUPU: — because I’m going to take – (laughter) – not yet. I’m going to take another – you want to say something on this question here?

MR. PICARELLO: Yes, if I could. I guess the only quick point I want to make is that yes, I am outraged. In other words, I think that this is bad for individual rights. I think it’s bad for religious institutional rights – expressive associational rights. I think that when you reduce – as the Court did – free exercise protections more or less to an anti-discrimination protection, and then you curtail to an even greater degree what that anti-discrimination protection provides, then you’ve again all the more severely curtailed what sorts of civil liberties are available there for individuals on the religious side.

MR. LUPU: Question, yes. Gentleman here and then Rob. Go ahead.

KEN JOSEWIDTH: Ken Josewidth, Congressional Quarterly. First to Marc, and then a comment from Anthony. If a state excludes church-affiliated schools from a school voucher program, what would you, Marc, say – what interest would justify that decision? And, Anthony, what arguments would you say in response? How could a state sustain such a program under this decision?

MR. STERN: It’s a highly unlikely hypothetical, since the overwhelming majority of private schools – certainly not upper-class private schools – are church schools, so it’s hard to imagine any state going to the trouble of enacting a voucher plan and then knocking out the schools that 80 to 85 percent of the kids attend. So it’s somewhat theoretical. You know, if there was a state constitutional provision, I would argue that the state has simply called for a separation. It’s a different vision of the way that the government and religion ought to interact, and under Davey they’re entitled to have a different view of the gap between the government and religion. That would the argument, but I don’t really expect to have to litigate that case because I’m hard pressed to imagine any state legislature enacting, in foreseeable economic circumstances, a voucher program that for all practical purposes would aid upper-class schools only. It’s not going to happen.

MR. LUPU: But the scenario is not implausible if we talk about the president’s proposed substance abuse program, which would be voucher financed. And you certainly could imagine a state saying we’re going to finance, by these vouchers, a federally supported drug and alcohol abuse recovery program, and we will include secular providers and we will include some religiously affiliated providers, but we will not include those providers that have faith and religious transformation at the centerpiece of their abuse control program.

MR. STERN: If we were talking about addiction services and not schools, there would be a whole different set of arguments about coercion, about the inability of addicts to find services locally. Even people who support the constitutionality of vouchers for social services have admitted that they believe it would be very difficult to provide secular – in fact when the administration has issued regulations in that area, the states have come in and said, Notwithstanding the statute, don’t make us provide secular alternatives. It’s too complicated and expensive, so just excuse us from that requirement. And that would be the grounds for litigation.

MR. LUPU: Anthony, the question was put to you as well.

MR. PICARELLO: Our view is that Locke v. Davey represents the unprincipled and muddled clergy training exception to the general principle that still holds firm under the Free Exercise Clause – it’s a baseline requirement of the Free Exercise Clause that you can’t specially disadvantage people on the basis of religion. You can’t provide a benefit to everybody and then just pull it back for religion. It’s just that simple. That’s the lesson, not just of cases like Smith and Lukumi since then, but also cases like McDaniel against Paty. And that involved a state constitutional provision from Tennessee back in 1978, where it said, Anyone can go to the state constitutional convention, except for ministers. Same thing. Different kind of benefit, but otherwise the same thing. Clergy training is at least arguably what it is that the Court was able to trace back to the founding as an important and competing constitutional value and carved it out from what it is. Otherwise it seems to me quite patently a non-neutral law. It singles out religion for special disfavor. So the bottom line answer is that if the program you’re talking about is clergy training, it’s covered by Locke. If it ain’t, it ain’t.

MR. LUPU: Rob. Rob has a question.

ROB MARUS: I’m Rob Marus with Associated Baptist Press. I have two questions, because the first one is for Mr. Picarello, the other is for the entire panel, whoever wants to jump in. But I’d like you to elaborate on what you think – since you don’t think there’s this stark either-or proposal between two ways the case could have been decided, what do you think this third way is that would still protect the free exercise from the kinds of assaults that were theorized.

And then the second question is, yesterday we had a conference call with Jim Towey at the White House Office of Faith-based Initiatives with reporters, discussing his reaction and the White House’s reaction to this decision. And basically his line was, This doesn’t effect the advance of faith-based initiatives at all. This is not a problem. I’d like you to give your own perspectives on what this means in your own legal assessment for the future of the expansion of social services through religious providers.

MR. PICARELLO: Sure. Let me try to address the second question briefly first. Maybe what Jim Towey was referring to was the fact that the federal faith-based initiative is unlikely to be hampered by state limitations like the ones upheld by the Court, unless the program involves state funds. So that could be what he had in mind. In other words, states cannot impose on the federal government those kinds of limitations, but states can certainly control their own funding and, again, under Davey, at least for clergy training, they can make an exception to the general rule.

As far as where’s “the play in the joints” if this case isn’t it? To begin with, states can simply not pass voucher programs. I’m a lot more comfortable with the idea of a state legislature not passing a voucher program at all, on the one hand, rather than passing one and then singling out religious people from exclusion from it, on the other. One of them reflects religious discrimination; the other one does not.

Religious discrimination is a baseline prohibition. Again, it’s not new with Smith. It’s been around for a long time. It’s something that, again, I think, in the civil liberties community, for a long period of time, that’s been a source of agreement. Religious discrimination is generally forbidden. Now, that’s a minimum. In addition to that, even under the federal Free Exercise Clause, we see it when religion gets the back of the hand – when religion gets these cleverly crafted, facially neutral slights. That should also trigger heightened protections. So in that sense, religion can be treated specially and differently. Why? Because the core value there is individual and institutional religious freedom, religious liberty of persons. Subsidiary to that is the Establishment Clause – reinforcing of that is the Establishment Clause, because establishment of religion tends to make individual liberty less and less likely. So these are not mirror images of each other. They weren’t passed for that purpose. One comes first in priority if not in actual sequence, and the other is secondary and reinforcing. They should be read as all good laws, statutes, constitutions ought to: They should be read in harmony rather than in tension, as nearly as possible.

MR. LUPU: Marc, you want to say something? I want to say something but I’ll let you go first -

MR. STERN: Go ahead! No, no.

MR. LUPU: – about the faith-based initiative.

MR. STERN: Oh, about the Faith-based– I assume that all Mr. Towey meant was that there’s nothing in this decision that makes the faith-based initiative unconstitutional and casts any doubt on the ability to go forward with the Faith-based Initiatives. I think, to the extent that if you read the debates, the argument has been the either-or argument, that unless it’s prohibited by the Establishment Clause, which we don’t think it is, we’re required to fund sectarian providers. That has been an argument made by legislators and others supporting charity initiatives. To the extent that’s the argument, I think Locke v. Davey will at least weaken the strength of that argument, because it’s now clear that you can’t argue that because you may that you must. At least you can’t argue that without a lot of legalese that is not going to carry very far.

As to the rest of what Anthony said, I would simply say that the notion that the Establishment and Free Exercise Clauses are essentially individual rights – provisions. They focus on the right of the individual towards religious expression and religious practice. I think with regard to the Establishment Clause that’s simply not sustainable historically. I think however else you read the history of the Establishment Clause, it is very clear that the founders believed that it was bad for both government and religion to be intertwined. Now, we will disagree, because I say there is no Platonic view of where that line ought to be, but there’s an institutional political component to the Establishment Clause that is not subservient to individual liberty. And it may well be that in some cases, preserving the institutional autonomy of both government and the church comes at the cost of individual religious expression in the service of a larger goal. I don’t particularly find that startling. I think it’s soundly rooted in constitutional history.

MR. LUPU: Well, I am the law professor up here, but I’m going to sound the least professorial of the people on the panel. Or at least I’m going to try. And I know probably less than these gentlemen -

(Off mike.)

MR. LUPU: I know. I know less than these gentlemen, perhaps about the history of the Religion Clauses, the Blaine amendment – perhaps less, perhaps more, doesn’t matter. I’m heading to your Faith-based Initiative/Jim Towey question, Rob. On the grounds of today, the fight in the Supreme Court that shows up in Locke against Davey is between two Religion Clause paradigms or two ways of thinking about them. Neutrality, equality, evenhandedness – this is the president. This is the Faith-based Initiative – the level playing field. We should treat secular and religious organizations, secular and religious providers, the same. They’re both engaged in the same good work; they have different methods; we should treat them the same. On the other side of that divide is the paradigm of separationism or religious distinctiveness. Religion is different from other kinds of concerns for constitutional purposes. Locke and Davey says – although it’s focused on the ministry, it’s not focused on drug programs or school vouchers or anything else – it says the ministry is a distinctive calling, and that there is constitutional concern about state support for the ministry. It’s not like other professions. It is constitutionally distinctive in the ways that religion as a general subject is constitutionally distinctive.

Now, there’s always the question of distinctive for what purposes? We know it’s not distinctive from secular organizations with respect to the drivers of its cars having to obey traffic lights when they go down the street. There’s always a question of when and why and how it’s distinctive. But Locke against Davey certainly fuels the argument for religious distinctiveness which means that in some states some of the time some of the contexts – whether it’s schools, the faith-based initiative, more likely – there are going to be voices that are going to feel slightly more empowered by Locke against Davey to say listen the Supreme Court has reminded us that the states are free to say that religion is constitutionally distinctive. Perhaps a bit more than the federal Constitution requires us to say that. We can have our own voice about the scope of religious distinctiveness and that competes with what some of these gentlemen are saying about treating religion and – Anthony more than Marc – about treating religion and non-religion precisely the same. And so, will this cripple the faith-based initiative? Of course not. Is it another arrow in the quiver of those who might oppose it in some respects? I think it is.

Other questions? Richard.

RICHARD FULTON: Thank you. Richard Fulton from the American Jewish Committee. I have a brief comment and then a question. The comment really is, I can’t resist commenting on a statement in the Scalia dissent, which really brings to my mind the thought, if only all of this talent could be used for good. In talking about the parade of horribles: all of the benefits are going to be denied other people on a religious basis because of this decision, is the following really remarkable sentence in which he says, “This may seem fanciful, but recall that France has proposed banning religious attire from schools invoking interest in secularism no less benign than those the Court embraces today.” Of course it’s Scalia’s opinion in Smith that really makes it possible for exactly the same thing to happen in the United States if that case is read broadly enough. So I just find that exercise in chutzpah just to be quite remarkable.

I agree with what has been said, that the subtext of this case – although the word never appears – is the federalism issue and how there’s a lot here about Rehnquist’s desire to leave the states a lot of “play in the joints.” My question is, given that that’s the subtext and does it make any difference – is the U.S. Congress going to have any less authority, any less “play in the joints,” than the states do? Or does the fact that the case formally deals only with the federal constitutional questions of the relationship between the Establishment and Free Exercise Clauses – does that mean that whatever the subtext is that the U.S. Congress is going to have the exact same “play in the joints” available to it that the state legislatures now seems to?

MR. LUPU: Go ahead.

MR. PICARELLO: The short answer is that that would require speculation. In other words -

MR.: Unlike everything else we’ve said today.

MR. PICARELLO: Yes, that’s right. Well, let me just underscore a point that Marc made when he first stood up and made his comments. We’ve got a short opinion – again, as the chief wants – that has a mish-mash of different facts, some of which may turn out in the long run to be the ones that matter, in terms of distinguishing this case from others. Is the federal-state distinction the distinction that matters here? I don’t know. There’s so much ambiguity and this opinion is – to use a jurisprudence frame – so open-textured it can be taken in either direction. Given the current constitution of the Court, if you do a nose count on federalism as localism – federalism as priority of state decision-making – that may be something that makes a difference.

Although, frankly, this Supreme Court as it’s staffed now has not been averse to striking down acts of Congress, and has done it to a greater degree than any of its predecessors. So it seems to me that on the other side of the coin, the federal-state distinction is diminishing. They’re bringing them more nearly in the line. States are getting a little bit more of the deference that Congress used to get. Congress is getting the abuse the states used to get, and it’s a little bit all in a piece. So your guess is as good as mine.

MR. STERN: I would add two things to that just very quickly.

MR. LUPU: Go ahead.

MR. STERN: One is, if you add up the seven votes, you have four staunch anti-federalists – or three-and-a-half, depending on Breyer’s mood. And you have O’Connor and Kennedy, who’ve been more or less on the federalist side of the divide with Rehnquist. So although I think federalism’s here in Rehnquist’s mind, and maybe some of the other justices, you can’t count on how far he could have gotten away with writing about it because he’s got to keep the other four who are there.

There’s another irony in this case. The one justice who has argued for a distinction between the Establishment Clause as applied to the federal government opposed to the states is Thomas, who has urged for a stricter Establishment Clause with regard to the federal government and a more liberal – or more loose – Establishment Clause with regard to the states. Nobody else has picked up on that in recent times, but who knows what that means given this decision.

MR. LUPU: I’m going to be less tentative in my answer to this question than the other gentlemen. I think Congress has more room than the states right now for” play in the joints,” because Congress is limited – if it wants to accommodate religion, if it wants to include religion in various programs that it funds, it’s limited by the Establishment Clause and holdings under the Establishment Clause, and so are the states. So they’re equal there, but the states – some of them – are going to be limited more by their own state constitutions, and I don’t see how you can read this opinion as suggesting any possibility of greater restrictions on Congress. They are where they were before this opinion – limited by the First Amendment, not more and not less. Some of the states are going to be limited more.

Let me say one other thing in response to a theme that’s gone through this conversation, about who’s on the Court and what they think, and of course that’s very important at the moment and it’s important to understand this opinion. There’s an election in nine months. Whoever occupies the White House beginning in January 2005 is going to get three or more picks to the Supreme Court, and we all know that. We’re all so used to thinking we can figure out the game of the Court just by looking at these nine because they’ve been there so long. And with or without term limiting the Supreme Court – which I think is a good idea – we’re going to get some replacements. So figuring out what O’Connor thinks, what Rehnquist thinks, what Stevens thinks – 2007 comes, they’re gone. So I think we need to figure out what we think this opinion means and how it will be read in the future, rather than what particular justices might do.

And we’re going to take one more question.

Q: This is related to issues of congressional power. The Section 5 question. I mean, Lukumi is cut to an animus case and Rosenberger’s now just about a public forum. What does this mean for RLUIPA and congressional power?

MR. LUPU: Explain for everybody what RLUIPA is a little bit more please.

MR. PICARELLO: RLUIPA is the Religious Land Use and Institutional Persons Act. It’s become of a bit of a cottage industry for the Becket Fund. We – it basically -

MR. STERN: Yeah, you and me.

MR. PICARELLO: Yeah. It’s actually a great statute. It’s designed to codify what was at least then was understood to be existing free exercise jurisprudence and apply it with special clarity to the area of land use law. It also has a prisoner provision that doesn’t try to codify existing law, so it’s not as much an issue in relation to Chris’ question. The question becomes, if the underlying constitutional law has changed, then is the statute now out of whack with that law, in which case you’ve got a bigger enforcement clause problem. In other words, Congress can only go so much beyond existing free exercise doctrine before it gets itself into the kind of trouble that got RiFRA struck down in city of Boerne. So the short answer is, that remains to be seen. It’s going to hinge on the angry legislator requirement. I think there’s an argument that that is now there. There’s an argument that it isn’t. It’s a difficult point.

I want to respond to one thing that Professor Lupu said. I agree certainly that -

MR. LUPU: I knew I provoked you.

MR. PICARELLO: Yeah, no, that’s true. I agree that certainly states are subject to more restrictions. There are more actual instances of positive law that apply to them and that will restrict them, but my point was only that the attitude of the Court, at least as currently peopled, is a little bit more evenhanded in terms of its attitudes about, say, motives of legislators at the federal and state level, that’s all.

MR. STERN: All right.

MR. LUPU: We should give Marc a last word, too.

MR. STERN: My own reading of this is that the impact of this case on free exercise doctrine will be limited to the mandatory funding cases, so I don’t think it’ll have large -

MR. PICARELO: Let’s hope so.

MR. STERN: – carry over to RLUIPA.

Secondly, the Court in the Voting Rights Act context has suggested that what matters is the time that Congress enacts the bill. Not 20 years later because the conditions that let the Section 5 of the Voting Rights Act – the preclearance provisions – no longer obtain in most places, and yet the Court has rejected challenges to the Voting Rights Act on that basis. And so I just want to make a point – which I should have made earlier – which is we have assumed the state constitutions – the Blaine amendments and the like – are being read restrictively. In fact, there has been a trend until now, in the last decade, of state supreme courts reading Blaine amendments as if they were nothing more than the Supreme Court’s neutrality, private choice. By the way, Rehnquist only mentions private choice. There’s nothing about neutrality, and I’m not quite sure what that means. So there’s been an erosion of what the state constitutional provisions have meant over the last 10 years. Whether this decision will now encourage state supreme courts to read them for what their drafters intended is an interesting and open question.

MR. LUGO: Thank you. Well, it’s all clearer to me, isn’t it to you? (Laughter.)

MR.: I’m glad somebody thinks so.

MR. LUGO: No, it is a lot clearer, and for that we thank you.

Just as a point of information, as some of you may know from the reading the press that the young man in question, Joshua Davey, at the end of the day decided not to go into the ministry and decided to go to law school and become a lawyer instead.

MR.: God save us.

MR. LUGO: I would venture to say that there are a lot of people, no matter where they came down on the Supreme Court decision who are ruing that decision by the young man.

Thank you very much. This was very, very interesting. Marc Stern, Anthony Picarello and Chip Lupu. Thank you very much.