Dean Rodriguez: For our last speaker, it is my pleasure to introduce my friend and colleague, Kenneth Starr, the Dean of Pepperdine’s Law School, where he also serves as a Professor of Law. Dean Starr is admitted to practice in California, Virginia, the District of Columbia, and the U.S. Supreme Court. He is a great --

DEAN STARR: Thank you so much Dean Rodriguez and my colleagues on the panel. It’s an honor for me to be here, and let me express my thanks to the Federalist Society, which in the finest traditions of the republic, believes in robust and uninhibited debate. We’ve had a goodly measure of that today, and I’m sure in the moments to come after my brief remarks in the moments that are afforded to me, and recognizing that feelings run very high on this issue.

Very powerful competing traditions, eloquently stated from the podium from both perspectives and viewpoints. Let me step back for just a few minutes and, on the constitutional issue, see if we can briefly, before the discussion period, examine the question. But from, perhaps, a broader constitutional lens, with the basic point being the baseline in our society is presumptively liberty.

So I ask you to bear these provisions in mind. Professor Brownstein very helpfully, in his illuminating comments, brought our attention to freedom of speech, and I’m sure he will have more to say about that.

Freedom of Association, which, of course, is not textually set forth in the First Amendment, but I think is universally agreed to as being inherent or at least implicit, in the idea of democratic society, that in order, effectively, to participate in a representative democracy, there must be a freedom to associate, given life through Supreme Court jurisprudence, especially in the Civil Rights Era.

Equal Protection, the value of equality, the value of nondiscrimination, Professor Brownstein, again, helpfully noted that. The Free Exercise Clause, which we haven’t spent time talking about, but that other important dimension of religious liberty set forth in the First Amendment.

Then of course, the Establishment Clause, which we have been talking about, it’s meaning. Professor Eastman lifted up what he views strongly as the original understanding, and the limited understanding of what the Establishment Clause was intended to accomplish.

I wanted just to share two very quick stories, and they are cases, and they will have to be brief. But I hope that maybe they will provide some illumination to the path with the baseline that I am putting before you being that of human liberty. The first is the Mergens case. It has not been mentioned, but there was a challenge brought to a congressional statute called the Equal Access Act, which provided that public schools that receive federal financial assistance have to, in a nondiscriminatory way, allow freedom, allow organizations, including religious organizations to meet on school property on the same grounds or the same terms and conditions as other non-religious or non-political organizations. So, if you allow a French club or a Chess club to meet, then the school must also permit religious clubs.

Bridgett Mergens, a high school sophomore wanted to start a Bible study club that she said would be open to anyone and everyone on the campus of her large public high school outside of Omaha, Nebraska. School authorities told her that she could not. The issue was eventually resolved by the Supreme Court eight to one, including Justices Brennan and Marshall that there was no violation of the Establishment Clause, by doing what? By allowing liberty, by allowing freedom.

The second story is that which continues to play itself out across the country, but this one made its way to the Supreme Court of the United States in the Zelman case, the school choice case. And there, in contrast to human beings coming together, Bridgett Mergens and her colleagues wanted to have a bible study, here was the state stepping in and saying we need to solve an enormous social problem.

First Milwaukee, but the case, Zelman, arose out of Cleveland, and, briefly stated, the State of Ohio found itself by virtue of Federal District Court order in the Northern District of Ohio placed, essentially in receivership and, indeed, the State Superintendent of Education was designated by the United States District Court Judge as being the receiver of the Cleveland school system.

It had, in a desegregation suit, failed so completely to abide by the various and sundry demands and requirements in the course of that litigation, that this entire school board was judicially fired. We might debate in another context the appropriateness of that sort of order, but suffice it to say that that order was not challenged. The Superintendent of Education in Ohio stepped in and became, in effect, the operating Superintendent of the Cleveland Public School System.

It was her views and that of others, both citizens and legislators and community groups, and a number of religious organizations from a wide and ecumenical variety that there simply had to be a new approach to public education in the city of Cleveland and, thus, school choice, where vouchers were permitted. Now, this was the state stepping in and saying to solve the social problem, here is what we’re going to do. Thus, certain criteria were created by the state, but those parents who then satisfied those criteria could then apply for and have their child placed in a private school.

In Cleveland, almost 90 percent of the private schools to which those individuals could take their voucher for tuition payment purposes were deeply religious schools of various faiths, but overwhelmingly of the Roman Catholic tradition. The Supreme Court was more divided on that than on the case that was helpfully discussed by Professor Brownstein. That was five to four, in contrast to Mitchell v. Helms, but the principle that was lifted up there, again, was liberty in a different form, namely, representative bodies must be able to go out and solve social problems of keen interest to the citizenry and must be given latitude in order to address and to seek to solve those problems.

As long as they do so in a way that is nondiscriminatory, that is, in the individual who qualifies under religiously neutral criteria, can in fact participate in the program. Professor Brownstein lifted this up, programs of general applicability and neutrality.

With those two cases and others that if time permitted, we could go into, a powerful overriding complementary principle to that of liberty is the baseline could suggest itself, and that is the principle of nondiscrimination, call it the equality principle. But we should not be singling out individuals or groups for favored or disfavored treatment.

That nondiscrimination principle has such power and such force that it seemed to unify a good deal of the Court’s work until just last year when the Court decided that there were definitely limits to the nondiscrimination principle.

In the Locke v. Davy case, Mr. Davy, a student at a Christian university or college in Washington State, wanted to use his scholarship to get a joint degree, both in business and in pastoral studies. He was denied that opportunity to continue using that Washington State scholarship on account of his intent to study for the ministry or the clergy.

The Supreme Court upheld that, reversing the Ninth Circuit, by the way, which had embraced and applied the nondiscrimination principle in saying one cannot discriminate against Mr. Davy simply because he chooses theological studies or clerical studies, pastoral studies as his chosen vocation or course of study.

Now, why was there a limit there? That was because of a cultural tradition that the Court looked to in speaking through the Chief Justice of the United States. That tradition was that we in this country have a deep and abiding sense that the taxpayer should not, in fact, be funding clerical education. So, while there is an equality principle or nondiscrimination principle that has great force and great efficacy, there are limits to that principle, and so it is alright for the Washington State Constitution to provide no aid whatsoever with respect to the training of clergy.

Point two -- and I have three minutes remaining -- culture in addition to the constitutional ends I think what we’ve already heard today suggests that we are examining this issue through a cultural lens. Here we have these competing visions and competing world views and deeply contesting values. How can we think about that. One very brief thought, and that comes from William O. Douglas and Zorach v. Clauson and in the passage that has been repeated in four majority opinions that suggests that there is a cultural dimension to the way we should think about these things. Because Douglas said in famous lines, we are a religious people whose institutions presuppose a supreme being, referring, presumably, to the Declaration, and the Declaration’s vision of where rights generate, that they come not from government, but they actually come from God.

We see that being played out in the Pledge of Allegiance case, which ended up, of course, being resolved, as we all know, on standing grounds, which George has lifted up as possibly an issue in the litigation in San Diego yet to come. Here, and my final thought, it seems to me that in addition to the great cultural divide, that we’ve heard it here at the podium today and seen evidence that, at issue, fundamentally, it seems to me is what are the Boy Scouts? What kind of organization is it? Is it in fact a religious organization in terms of the Establishment Clause? Is it, in fact, a very ecumenical church?

And this strikes me, as I’ve read the materials in connection with the litigation, a rather fact-bound issue, but it is nonetheless one in which virtually every American twelve years and older will have a view. It does, in fact, bring us back to Boy Scouts v. Dale, and the Freedom of Association case, which I think brings us back to the baseline of liberty, that is whether one approves or applauds the values and the traditions of a particular organization.

Since, the baseline is liberty, it is important for us to permit these kinds of organizations to exist and to grow and prosper, but what then happens where there is an intersection. To me, the fundamental question then under existing case law, and we’ll probably talk about case law, and especially that of which Eric mentioned, which is the endorsement test, first articulated on a concurring opinion by Justice O’Connor in Lynch v. Donnelly 21 years ago, but then became the law of the land in the Allegheny case just a few years later.

Does it, in fact, constitute an endorsement of Boy Scouts’ beliefs, which many approve and many clearly disapprove of that set of beliefs when, in fact, a lease is issued. That brings me back to where I think the dividing line is in this particular litigation.

I have seven seconds left, so the dividing line better be very briefly stated, and that is what Professor Brownstein lifted up: that is, is there some sort of process requirement or, in light of concerns about organizations including government being able to order themselves and order their own procedures, is it quite alright when there does not seem to be a sense, at least as proven in court that there was a deliberate conscious effort to favor the particular views of a particular organization? That is, does it constitute to the reasonable observer an endorsement of the views of that particular organization such as, and Professor Eastman lifted these up, Catholic charities if this is really a Catholic city or it’s a Jewish city because of the Jewish Community Center? Is there some help in the fact of the number of organizations that the city has seen fit to allow to use this property, and essentially, to follow what appears to be to this observer from Malibu, California, a baseline of liberty? Thank you very much.