Legal Services Corp Case

The LSC is a government agency that "distributes funds appropriated by Congress to eligible local grantee organizations" to fund legal services for the poor. The law provides that the funds may not be used "if the representation involves an effort to amend or otherwise challenge existing welfare law."

Is this case more like Rust (funding private grantees to deliver government speech or government services) or more like Rosenberger (funding that facilitates private speech, in this case the private legal arguments of clients challenging governmental restrictions on welfare programs)? See page1619.

In a lawsuit challenging governmental restrictions in a welfare program, which lawyer delivers the government's legal viewpoint--the government's lawyer or the LSC-funded lawyer representing the welfare applicant? See id.

See p. 1619-1620:

1. " The private nature of the speech involved here, and the extent of the LSC's regulation of private expression, are indicated further by the circumstance that the Government seeks to use an existing medium of expression and to control it, in a class of cases, in ways which distort its usual functioning."

2. "Restricting LSC attorneys in advising their clients and in presenting arguments and analyses to the courts distorts the legal system by altering the traditional role of attorneys."

Now apply this to the Promise Scholarship Program in Locke v. Davey. Is this a pool of funds designed to facilitate private educational speech or is it government speech? Is the restriction against funding "devotional theology" majors a viewpoint restriction on private educational speech? Does it "distort" an "existing private medium of expression?"

Is Davey more like Rust or more like Rosenberger, Finley and Velazquez? If Rehnquist was really serious in avoiding a free speech issue in Davey, his job was to analyze this cases and persuasively argue that Davey was more like Rust than like the others. Did he do so?

Our Course in the News

Today's Wall Street Journal (link):

Catholics in Court

The religious-liberty lawsuit against ObamaCare is historic. 

 

 The 12 federal lawsuits filed Monday by 43 Catholic plaintiffs against the Obama Administration's birth-control mandate are a big political and Constitutional moment. The nation's most prominent Catholic institutions are saying that the same federal government they have viewed for decades as an ally in their fight for social justice is now a threat to their religious liberty.

This can't have been an easy decision, especially because the plaintiffs are hardly founding members of the tea party. They include the Archdioceses of New York and Washington but also Catholic University in Washington, D.C., and even the University of Notre Dame.

The famously liberal Notre Dame gave President Obama an honorary degree in 2009 despite his support for abortion rights. At the time, Notre Dame President John Jenkins applauded Mr. Obama's "willingness to engage with those who disagree with him and encourage people of faith to bring their beliefs to the public debate."

So much for that. The lawsuit signals that far from engaging with "those who disagree," Mr. Obama has rebuffed Catholic leaders in their attempt to work out a compromise over the Administration's mandate that all insurance plans offer contraception and sterilization services, including abortifacients. "If the government wants to provide such services," Father Jenkins said in a statement Monday, "means are available that do not compel religious organizations to serve as its agents."

 But the Administration deliberately rejected any such means, exempting a religious employer only if it is a nonprofit whose goal is the "inculcation of religious values" and which primarily employs and serves people who share the same values. That leaves out legions of parochial schools, universities, hospitals, soup kitchens and other charities whose beliefs are also threatened by the mandate.

The Department of Health and Human Services offered a fig leaf in February, foisting the mandate onto insurance companies rather than religious employers. But the insurers would pass along the mandate's cost to the employers in any case, and institutions like Notre Dame that self-insure would still be subsidizing policies that violate core church teaching. As Cardinal Timothy Dolan of New York put it, this so-called "safe habor" effectively gives religious institutions "a year to figure out how to violate [their] consciences."

The suit charges that the mandate violates the First Amendment's Free Exercise Clause, as well as the 1993 Religious Freedom Restoration Act, which requires that the federal government meet a higher legal standard for any law that interferes with religious liberty. "If the Government can force religious institutions to violate their beliefs in such a manner," argues the Notre Dame suit, "there is no apparent limit to the Government's power."

The Administration and Democrats have tried to obscure the real nature of this dispute by claiming that the church wants to deny contraception to women. But birth control will continue to be widely available and easily affordable no matter what the legal outcome. Nine out of 10 health plans currently provide it.

The real and startling question at issue is whether the entitlement state can pound everything, including religious belief, to its political will. Few previous Administrations would have dared such a high-stakes Constitutional battle, but Mr. Obama's willfulness reveals the change that is taking place in liberal politics.

 Once upon a time the political left viewed Catholics and especially the bishops as their allies in using government to create more equal opportunity and redistribute income. But today's Democratic Party puts a higher cultural value on sexual politics and expanded reproductive freedom. We trust the courts will instruct the Administration that the Constitution still puts religious liberty first.

Class Schedule

I checked with Vickie this morning. Here is the remainder of our schedule.

We meet every day this week.

Monday May 28--No class Memorial Day Holiday

Tuesday May 29--Regular class

Wednesday May 30--Regular Class (last scheduled class)

Thursday May 31--No class scheduled. Study for Final

Friday June 1--Final Exam (8:30 AM)

For Monday May 21

Let's start Monday's class with a discussion of education and religious liberty and justice from a Rawlisian consensus from behind the "veil of ignorance." Scroll down to next post.

We will break up into small groups and, writing from a blank slate, try to reach a consensus as to how to structure the role of government in the new society we are creating.

You won't know what your situation will be like in this new society.

You might be a committed secularist or Christian or Jew or Buddhist or atheist or some other religious or non-religious believer.

You may be rich or poor or somewhere in between.

Whatever your beliefs, you love your children and want them to be educated about what is true and good and beautiful. And you also understand that we do not agree about many of these truths, or indeed, even about the nature of reason and rationality.
 
 Consider, for example, brilliant scholars such as Profs. Ackerman and Johnson and their very different worldviews. If you and they had to design an educational system from "behind the veil of ignorance" how would you reach a consensus about how to design it?

A Call for Religious Freedom

Here is the text of George Weigel's recent Commencement Address, delivered at Benedictine College, entitled "Defending Religious Freedom in Full: A Generation's Challenge."It has generated a great deal of buzz lately.

Link

Today (Wed. May 16)

Let's start today's class with a discussion of the John Spokes hypo in Handout 2.

Incorporation of Individual Liberty

I think I went too quickly over the issue of Incorporation of the EC yesterday.

I want to start today's class by going back over the theory of incorporation, which is that individual liberty interests from the Bill of Rights are "incorporated" against the states because these are fundamental individual liberties.

However, in many EC cases the state law being challenged as a violation of the EC is not one that deprives anyone of liberty. Indeed, it often seems as though the court is being asked not to advance individual liberty but to restrict individual liberty in order to carry out some structural rule concerning state power (such as Lemon's rule that laws must have a "secular purpose"--this doesn't ask "whose liberty is being restricted, but rather "does the state have the power to enact laws if the legislature lacks a "secular purpose').

Think about Everson, Zorach, and the cases we read for today. Ask yourself is the EC being brandished to protect liberty, or to take liberty away?

New Look For Blog

I decided to do a little interior decorating and gave the blog a new template.

I like it!

Handouts Available

The Handouts referred to in the list of Assignments are available in the Handout Racks near the South Side faculty Suite.