"Finally, as to looking to the principles actually
used by the Court, I would have thought that we ought to ask them to be logical
-- perhaps not perfectly crisp and clear in all instances, but still generally
logical."
Eugene, Eugene: Surely you jest. Don't
forget to take a look at the very first line of the opinion: "CHIEF
JUSTICE REHNQUIST delivered the opinion of the
Court." As with most CJ opinions, especially those involving difficult
constitutional questions, the whole objective is to ensure that
there is no internal "logic" at all, so that the Court is free to
decide the next cases any way it wishes. (Another classic in this
vein: the indefensible Boy Scouts v. Dale, which makes
no doctrinal sense and that can be read either to make mincemeat of a
long line of previous cases, or as a one-time ticket good for this day and this
train only -- probably best viewed as the latter, as the Solomon Amendment
case will demonstrate.) Indeed, much to what I imagine is Eugene's
chagrin, it turns out that the entire Court is becoming much less
doctrinal in recent Terms when it comes to constitutional decisions, and much
more, shall we say, discursive, in a Rehnquist/O'Connor/Kennedy sort of
way. Scalia and (sometimes) Souter and Thomas might be exceptions.
But surely, the Chief's opinions are, quite intentionally, the most inscrutable
of all.
Locke v. Davey
is a Chief Special. It goes out of its way to throw together,
willy-nilly, a bunch of different variables and factors, any one (or two,
or three) of which could be ignored, or embraced, next time around.
That's no accident -- it's how he designs it. Just take a
look at the one-sentence footnote 4, which apparently purports to
resolve several inscrutable constitutional questions -- concerning
unconstitutional conditions, and the "segregation" requirements of, e.g.,
Rust and LWV -- that many very bright folks (e.g., Seth
Kreimer, Kathleen Sullivan, Mitch Berman, Doug in his Harvard piece) have spent
hundreds upon hundreds of pages trying to unravel (and that we struggled with
for weeks on this list prior to the Court's
decision).
The judgment in
Locke can be defended. But in order to do so, one needs a much
richer account than Rehnquist would ever dream of providing with respect to at
least two things: (i) an explanation of exactly why Washington
might wish not to fund divinity studies (or why the state in your hypo, Eugene,
would single out religion for restriction) -- by which I mean something much
more than the simple and unhelpful "because there's a tradition of not
using government funds to subsidize the church"; and (ii) a more fullsome
understanding of which sorts of government reasons for singling out religion
are, and are not, constitutionally
problematic.
I'm working on it -- and
I'll get back to you in a few years . . . .
----- Original Message -----
From: "Volokh, Eugene" <[EMAIL PROTECTED]>
To: "Law & Religion issues for Law Academics"
<religionlaw@lists.ucla.edu>
Sent: Tuesday, May 03, 2005 2:09 PM
Subject: RE: Locke v. Davey
follow-up
not want to use public funds to support religion and religious training.
And it can constitutionally do so." In my hypothetical, that is
*precisely* what the state is trying to do.
Now perhaps Steve's "unreality" point is simply that the
provision is unlikely to be enacted. That's hard to tell; the U.S. is a
big country, and lots of things that are unlikely generally may get
enacted in one or another location under one or another circumstance. I
realize that some hypos are so outlandish that they shed little light on
the question. But is this really *that* outlandish? Is it really
pointless to consider what would happen when a state is genuinely
committed to the *very sentiments expressed in Steve's own quote*, and
just takes them further than Washington did in Locke?
Finally, as to looking to the principles actually used by the
Court, I would have thought that we ought to ask them to be logical --
perhaps not perfectly crisp and clear in all instances, but still
generally logical.
Eugene
-----Original Message-----
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED] On Behalf Of Steven Jamar
Sent: Tuesday, May 03, 2005 10:31 AM
To: Law & Religion issues for Law Academics
Subject: Re: Locke v. Davey follow-up
The reason I find Eugene's hypo uninteresting is the unreality of it.
Of course, I say this despite having seen many things I once thought
from the realm of fantasy come to pass.
There is a difference between a tax and subsidy.
There is a difference between a direct payment and an indirect one.
There is a difference between programs with conditions and direct
requirements without the inducements.
But, in every instance, the edges are blurry and if pushed too far, one
thing has the undesired effect that the distinction was trying to make.
A state may not want to use public funds to support religion and
religious training. And it can constitutionally do so. The fact that
the intention can be circumvented or that the line drawn is imperfect or
that some distinctions seem illogical or are in fact illogical simply
means that the world is complex and that relationships of things one to
another are tangled and weblike, not subject to linear logic.
Can one come up with a principled approach? The court tries to do so.
Sometimes the principles are as vague as balancing competing interests
of conflicting demands; or sometimes principles will conflict (speech v.
establishment a la Rosenberger); or sometimes the situation just
requires that the case and only the case before it be decided; or
sometimes the principles are not hard-edged (like direct and indirect);
or sometimes they relate to history and tradition; and sometimes they
are teleological. Sometimes the principles are even logical or
susceptible of syllogistic application. Indeed, most cases are like
that. But not the ones on the edges.
We should not be looking for logic in freedom or religion as Eugene
seems to be wanting us to do, but we should be looking to the principles
actually used by the Court. We make a mistake when we look just to
facts or to holding or to logic.
As Doug Laycock has pointed out better than I could have.
Steve
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