Locke v. Davey
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Why Don’t More Public Schools Teach Sex Education?: A Constitutional Explanation and Critique
This article questions why so many public schools do not teach any form of sex education. The answer proposed in this article is that the U.S. Constitution is a part of the problem. This claim is based on the following two premises: (1) the U.S. Constitution almost certainly does not require public schools to teach sex education; and (2) the U.S. Constitution arguably requires public schools that teach sex education to exempt those students whose religious beliefs are substantially burdened by sex education.To illustrate how these two premises might weigh in a school district’s decision not to teach sex education, this article analyzes a hypothetical question of how a school district should respond to threatened constitutional litigation over sex education. After Part I poses the hypothetical, Part II analyzes the problem and concludes with the two premises upon which my thesis is based. Based on Part II’s analysis, Part III offers the following solution: not to teach sex education. After noting that this is not a solution to the problems resulting from uninformed or misinformed teen sex, Part III then departs from the article’s descriptive format and briefly explores, as a normative matter, whether we should break the constitutional constraints that lead schools not to teach sex education. The article concludes with consideration of how the preceding discussion contributes to our understanding of the Constitution and those charged with interpreting it.
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Neutral Principles
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Where Do Constitutional Modalities Come From? Complexity Theory and the Emergence of Intradoctrinalism
This article seeks to shed light on one of the most vexing and important problems in constitutional law and theory: how courts interpret the Constitution. Part I of the article begins by recounting the major theories of how courts should interpret the Constitution. Part I then explains why many scholars agree that Philip Bobbitt’s modal approach has best addressed this problem. According to this approach, courts and lawyers use six modalities or methods to interpret the Constitution. Part I concludes by pointing out that Bobbitt’s framework, though helpful, fails in two respects: it fails to explain where these modalities come from and it fails to explain how courts resolve modal conflicts (i.e., cases involving conflicts between two methods of interpreting the Constitution). Here, we come to a central purpose of my article, to fill in these two holes in Bobbitt’s framework. To the best of my knowledge, there is only one other article that takes on this task, an article by Ian Bartrum recently published in the William and Mary Bill of Rights Journal. Part II summarizes how Bartrum’s article seeks to use metaphor theory to resolve these two problems in Bobbitt’s framework. Part II concludes that although Bartrum’s use of metaphor theory represents a significant advancement in the debate over this issue, Bartrum’s account is still incomplete because it does not capture the unpredictability and randomness in the emergence of new modalities. Part III proposes that complexity theory, with its focus on the unpredictability and non-linearity of complex systems, provides a better way of understanding the creation of new modalities. After providing some background on the leading complexity theories, this section argues that modal conflicts are instances of legal chaos, analogous to far-from-equilibrium systems in thermodynamics, in which complex forces resonate to produce outcomes that are ex ante unpredictable. The final section, Part IV, explores precisely how complexity theory can apply to cases involving modal conflicts. In describing different types of modal conflicts, Part IV argues that some conflicts create so much legal chaos that they generate new modalities altogether. Part IV offers an example of such an emerging modality, a modality that I have named “intradoctrinalism.” When a court applies this modality, it interprets a particular doctrine in a way that makes all of the court’s doctrines logically cohere. I argue that this modality might explain a very important case in church-state law, Locke v. Davey, 540 U.S. 712 (2004). The paper concludes with some reflection on how complexity theory can apply to other legal problems, such as how courts can reconcile conflicts between competing legal regimes. The paper thus has both a narrow purpose, to use complexity theory to fill in the gaps in Bobbitt’s modal approach, as well as a broader purpose, to advance complexity theory as a means of examining legal problems in general. With this broader purpose, the paper stands alongside recent efforts to place complexity theory at the forefront of the debate over how to explain social phenomena.
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Finding a Ceiling in a Circular Room: Locke v. Davey, Religious Neutrality, and Federalism
The text of the U.S. Constitution clearly distinguishes religion from non-religion by providing that while Congress may pass laws concerning many subjects and prohibiting many things, it may not make laws respecting the establishment of religion or prohibiting religious exercise. As the distinctiveness of religion is clear from the text, the Court has had no problem concluding that religion, as a subject matter, and religious believers, as a class of persons, are constitutionally distinct. Though not apparent from the text, it is equally clear, and equally settled, that the Religion Clauses tug the government in opposite directions. Noting this tension, the Court has tread the line between the clauses carefully, holding that if the government opposes the establishment of religion too vigorously it will burden religious exercise, and if the government seeks to accommodate religious exercise too liberally, it will establish religion. However, while these propositions — that religion is distinct and that there is tension between the Religion Clauses — are clear and settled, the Court has struggled mightily to reconcile them. That is, the Court has not been able to answer the following question: how differently may the government treat religion from non-religion under one clause without violating the other?This article attempts to answer that question. My answer is inspired and informed by Locke v. Davey, 540 US 712 (2004), a case in which the Court held that at least in certain contexts the Free Exercise Clause permits the government to exclude an individual from a funding program on the basis of religion. In answering this question, I hope to accomplish three goals: (1) to defend the holding and reasoning in Davey; (2) to assuage the concerns of Davey’s critics; and (3) to develop a paradigm that grants states discretion over how they partner with religious organizations but still limits states in a way that is consistent with the guarantees in the Religion Clauses. Given the extensive criticism of the Davey opinion, and the normative and practical significance of the question addressed in this article, this analysis is particularly timely and important.
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Virginia State Board of Pharmacy v. Virginia Citizens Consumer Council
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