Eugene Volokh lauds a particularly good piece on NRO by Prof. Rick Garnett of Notre Dame on the issues in and significance of Davey v. Locke, which the Supremes are scheduled to hear.
Joshua Davey was awarded a “Promise Scholarship” by the state of Washington, which then rescinded it because Davey indicated that he intended to major in pastoral studies. The state constitutuion provides that “[n]o public money or property shall be appropriated for or applied to any religious worship, exercise or instruction, or the support of any religious establishment[.]” Davey claims that depriving him of a scholarship solely because he intends to prepare for a career in the ministry is “viewpoint discrimination” that violates his First Amendment rights.
We’ll see what the Supremes say. Meanwhile, I have a question or two for legally learned readers. It is my impression that many of the most vocal opponents of any state aid that so much as takes account of religion, or that benefits religion even as a byproduct and not the intent of state action, also are frequently among the most fervent advocates in favor of the state taking account of race, even to the point of extending preferences based on race. What is the rationale for believing that “diversity” justifies — some would say requires — racial favoritism but that even incidental aid to religion is strictly prohibited?
If “diversity” is thought to be so compelling as to justify discrimination based on race, should not the state also be allowed to promote religious diversity as well? If diversity really is as compelling as its defenders maintain, should not a state be allowed not only to provide scholarships to pastoral students but to insure that those scholarships are fairly distributed among Catholics, Jews, Methodists, Muslims, etc.? Would not, say, a law school faculty that is 50% Jewish, or more, but with very few Muslims and no pentecostal or evangelical Christians be seriously un-diverse and in need of correction? Why not?
Strict neutrality — among religions as well as races — is not only the most morally appealing position, not only the position most congruent with our history and values, but also the only position that is workable without constant racial and religious strife. In fact, that truth has a great to do with the emergence of the neutrality principle over time.
Finally, if “viewpoint discrimination” really is unconstitutional, then how can “diversity,” i.e., racial preferences, be justified on the grounds that it is necessary to reward and encourage certain viewpoints?
UPDATE – I have written more extensively here and here about the relationship between race and religion (race and sects, for those of you who like alliterative puns).
The difference is primarily the difference between the first and fourteenth amendments.
The First Amendment states that “Congress shall pass no law… respecting establishment of religion” (or words to that effect). It’s considered the paragon of the Bill of Rights, and sits atop a holy throne in Constitutional Law.
People who make real legal arguments (as opposed to knee-jerk reactions) about funding to religion are concerned with keeping up the “barrier between church and state.” They see any money going from state to church as a potential for favouritism, and ultimately to government subsidization of particular religions over others — de facto establishment, they would say. that’s why the voucher wars concentrate so heavily on the number of Catholic schools that benefit. it just so happens that a LOT of private schools are Catholic, but is establishing a seemingly neutral voucher program really a pretense for throwing money at Catholics? Maybe. Maybe. Probably not, if you ask me.
The Fourteenth Amendment, however, has to do with Equal Protection under the law. It’s typically accepted that the Thirteenth, Fourteenth, and Fifteenth amendments were adopted to end slavery and ensure the eradication of its aftereffects. Thus, the fourteenth amendment has a special affinity for race — although it’s also used nin a wide variety of other contexts (gender, citizenship, etc.).
Section 5 of the 14th Amendment empowers Congress to pass laws as needed to enforce it. In a way, it’s exactly the opposite of the Bill of Rights. The first ten amendments are all about what the government CANNOT do. The Fourteenth grants Congress some extraordinarily wide powers.
The Civil Rights Act of 1964, which stems from the same philosophical basis as the 14th Amendment if you ask me, allows for discrimination to be found if there is “disparate impact.” This judicially created tool for finding discrimination allows for people to look at a situation (say, No Blacks at the state University) and say “Disparate Impact.” Ergo Discrimination. Ergo the Fourteenth Amendment (or at least the philosophies behind it) should empower the state to DO SOMETHING ABOUT IT.
So that’s the answer to your first question. Sort of.
As far as diversity… well, the idea of diversity as a “compelling justification” came from Bakke v. . . . oh, versus someone. I forget. Anyway, it was a strange opinion with no majority. That’s why the current case is so exciting… there’s no clear binding precedent. Anyway, the case was about racial preferences. There is no case dealing with religion that calls for “diversity.” Nor will there be any time soon, most likely. Generalizing… Democrats don’t want precedent that has the government giving out favours to religion, and Republicans want “diversity” to die a slow death. So Bakke (and Powell) carry on, limited to the facts of the opinon, which is to say, racial diversity.
Finally, there is a non-trivial argument that viewpoint discrimination is not truly involved in selecting a “diverse class.” Because the idea is to get some of every viewpoint (even if it’s a so-called “racial viewpoint”), all viewpoints are being “discriminated against” evenly. It’s more of a time-place-manner restriction than viewpoint. That would probably be the argument, anyway.
I hope that’s what you were looking for. Come visit me at Highered Intelligence sometime: http://www.higheredintel.blogspot.com
-Michael E. Lopez
Michael – That’s a great attempt at responding to my questions. You make a numbe of really good points, but I’m still left with confusion about why “diversity” is so important vis a vis race but of no importance vis a vis religion (or so many would argue). I don’t think the text of the 1st vs. the 14th Amendments explains the difference. By the way, you are right that the 14th empowered Congress to enforce it, but the Courts have now pretty much also “incorporated” the Bill of Rights into the 14th, which now bars the states from doing what the feds can’t do. In short, I think the undermining the neutrality principle by allowing the states to engage in racial discrimination (which is what preferences require) will also undermine the neutrality principle with regard to religion. If “diversity” requires the presence of a “critical mass” of blacks and Hispanics, as Michigan and others argue, it also requires the presence of a sufficient number of Muslims, Missouri Synod Lutherans, not too many Jews, etc.
Well, I think the answer is pretty clear. Anyone who supports government-mandated diversity of race but not of religion is hypocritical. Support both (argh!) or support neither (yay!).
I’m not disagreeing with you — though I have to say the idea of taking religion into account is more palatable to me because religion is something real that you can point at and say “He’s Catholic.”
All I was doing was trying to provide a legal explanation: the first amendment is steeped in a philosophy of non-interference, the fourteenth in one of government action to correct inequity.
There’s also the historical argument to consider.
This country was more or less founded on the idea that religion would not be the basis for discrimination. (Yes yes we all know about discrimination… I’m talking about general themes here)
The country was also more or less founded on the idea that race-based slavery was acceptable.
The neutrality principle that you identify serves to reinforce the status quo with respect to that towards which it is remaining neutral – whatever that status quo may be. With respect to religion, the status quo is/was neutrality. Being neutral towards it perpetuates that neutrality. With respect to race, well… everyone knows about LBJ’s famous speech about a man living in chains being free to compete. Enacting the neutrality principle with respect to race (as a legal principle) when there is still rampant discrimination is going to result in the apparatus of law being unable to cope with that discrimination.
I ain’t saying that’s a bad thing… I tend to think that the case for discrimination in the modern U.S. is incredibly overblown. I’m in favour of the neutrality principle… but you asked for a legal explanation and now you have it.
-Michael
One more thing…
Remember that you asked questions about why things are the way things *are*, not the way they should be.
I’m giving explanations here, not prescriptions.
-Michael
Michael et. al., I have written more extensively about the relationship of race and sects here and here, if anyone wants to pursue the matter.
“Diversity” in the post-modern world has not a whit to do with true variety, but signifies in its euphamistic way preferences for favored racial groups, most particularly blacks. The fact that religious diversity is of no concern to the high priests of political correctness only emphasizes the point.
“Diversity” as a constitutional principle of law or precedent does not, in fact, exist. The word was used in Justice Powell’s opinion in the Bakke case, but is mere dicta and thus not law. Powell’s opinion was a mess, but his vote, along with four other justices of like mind, in favor of the plaintiff, Bakke, has mistakenly been seen as establishing a constitutional basis for diversity as an approved exception to 14th Amendment prohibitions against state-sponsored racial discrimination.
Despite popular misconceptions on this point, some intellectually corrupt judging in the lower courts and wholly unprincipled cowardice by various college administrators in thrall to their own white man’s guilt, diversity is as much of a legal sham as Tawana Brawley’s sordid tale.
Diversity, neither the conventional type (i.e., variety of view and experience)nor the insidious current euphamism for racial spoils, has no place in sectarian considerations or the First Amendment. The “establishment” half of the relevant portion of that amendment prohibits government from establishing a state religion (e.g., the Church of England) as a part of the governmental structure. (Remember the English sovereign has, among his/her titles, “Defender of the Faith”–which, ironically, refers to Roman Catholicism–but since the 16th century has meant defender of the religion Anglican Church).
In the law, the establishment clause proscribes endorsement, support or establishment of a particular religion or religious order by the state(although, one should note that the Anglican Church remained the “official” religion of several states following adoption of the Bill of Rights).
(The other half of that portion of the First Amendment,not relevant to this discussion, forbids government from prohibiting the free exercise of religion.)
Based upon existing case law–which in my opinion is entirely overwrought on the “establishment” clause–and logic, it seems reasonable to assume that state sponsership of scholarships expressly for and restricted to those, for example, who are preparing for the priesthood is forbidden by the establishment clause. But, state funding of scholarships to college, where the money is provided to the student or his parents to use as they see fit, does not violate the establishment clause should the recipient choose or for that matter be free to choose the money to pursue a degree in theology or to prepare for the priesthood.
This area has been expounded upon most recently in a number of cases involving voucher programs where the recipients have or might have used the vouchers to attend parochial schools. By and large, the decisions have found no constitutional problems as long as the voucher is given to the student and his parents for use as they determine.
In addition, there is absolutely no precedent in law that would prohibit the use of government funds (e.g., Pell Grants or ROTC funds)to assist a student who chooses to attend, say, Georgetown or Notre Dame, and to prepare for the priesthood.
One may reasonably assume that certain Washington bureaucrats are indulging their particular biases in singling out the plaintiff in Davey for special, prejudicial treatment.
Does a Racial Diverity Rationale Imply a Religious Diversity Rationale?
John Rosenberg of Discriminations raises an interesting question: If “diversity” is thought to be so compelling as to justify discrimination based on race, should not the state also be allowed to promote religious diversity as well? If diversity really…
I’m thinking of doing a more philosophical rather than legal analysis of this issue, but: isn’t “race and sects” a homonymical, and not alliterative, pun?
Carnival of the Vanities
Dean’s World is proud to host this week’s Carnival of the Vanities. What is Carnival of the Vanities, you ask?…