Is it davey's locker for the no-funding principle?

Journal of Church and State

Volumn 46, Issue 1, 2004, Pages 25-38

  Greenawalt, Kent ^a  

^a Och Spine at New York Presbyterian Hospitals

Author keywords

[No Author keywords available]

Indexed keywords

EID: 34248044210     PISSN: 0021969X     EISSN: None     Source Type: Journal    
DOI: 10.1093/jcs/46.1.25     Document Type: Article

References (12)

1. See, e.g., Robert Putnam, Bowling Alone: The Collapse and Revival of American Community (New York: Simon & Schuster, 2000)
2. Everson v. Board of Education, 330 U.S. 1 (1947)
3. That Justice Black himself understood the principle to bar funding, regardless of the criteria for aid, is shown by Philip Hamburger, Separation of Church and State (Cambridge, Mass.: Harvard University Press, 2002), 469
4. See Kent Greenawalt, "Viewpoints from Olympus," Columbia Law Review 96 (1996): 697
5. For a perceptive appraisal of Madison's views, see Vincent Blasi, "School Vouchers and Religious Libert)': Seven Questions from Madison's 'Memorial and Remonstrance'," Cornell Law Review 87 (2002): 783
6. On the Supreme Court's increasing reliance on "neutrality" as the governing principle for the Establishment Clause, see Stephen V. Monsma, ed., Church-State Relations in Crisis: Debating Neutrality (Lanham, Md.: Rowman & Littelfield, 2002)
7. Frederick Mark Gedicks, "A Two-Track Theory of the Establishment Clause," Boston College Law Review 43 (2002): 1071
8. The court of appeals does say that "state policy excluded only those who pursue the study of theology from a religious perspective." See Davey v. Locke, 299 F.3d at 752. According to officials administering the restriction, its application was left to individual educational institutions. See excerpts from depositions of John Klacik, Joint Appendix, note 26 at 126, 129, and Rebecca Collins, ibid. at 137-38. The director of financial aid at Northwest College, Lana J. Walter, took a broad view of the restriction as applying to those planning to enter the ministry. Ibid. at 156
9. Derek H. Davis makes a much more general argument that funding effectively discriminates in favor of religious groups that are set up to receive public money and desire it. See Derek H. Davis, "The U.S. Supreme Court as Moral Physician: Mitchell v. Helms and the Constitutional Revolution to Reduce Restrictions in Governmental Aid to Religion," Journal of Church and State 48 (Spring 2001): 213, 224-25
10. Philip Kurland, "Of Church and State and the Supreme Court," University of Chicago Law Review 1 (1961): 29
11. The line between benefits that relieve burdens and those that do not is murky. See Kent Greenawalt, "Quo Vadis: The Status and Prospects of "Tests" Under the Religion Clauses," Supreme Court Review (1995); 385-88. And some benefits, notably tax exemptions and deductions, may not count as establishments, even though they do not exactly relieve burdens on free exercise
12. See, e.g, Hamburger, Separation of Church and State