In Mark's hypo the philosophy departments, and the teachers who speak within it, are
state actors. The question, then, is not whether exclusion of a certain viewpoint
from faculty speech would violate the free speech clause (the clause that UVa was
held to have violated in Rosenberger);
Sandy, the Tenth Circuit opinion does
not suggest that your hypo would state a claim -- to the
contrary. The court's opinion explains in great detail why a school has
the authority to require students to fullfill curricular requirements, and why
that does not make out a "compelled speech"
When Mel Nimmer stood up to argue on Cohen's
behalf, Burger immediately instructed him as follows: "Mr. Nimmer, you may
proceed whenever you're ready. I might suggest to you that . . . the Court is
thoroughly familiar with the factual setting of this case and it will not
benecessary for
I've posted to SCOTUSblogthe respondent's
briefand some of the briefs for amici on behalf of the respondent, all
of which were filed yesterday,in No. 02-1624, Elk Grove Unified School
District v. Newdow, the case involving the constitutionality of including
the words "under God" in the
7-2, with dissents from Scalia and
Thomas
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Wednesday, February 25, 2004 10:18
AM
Subject: Locke v. Davey
Ninth Circuit reversed, in an opinion by the
Chief! Details
that
the FEC permits?
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Wednesday, February 25, 2004 10:28
AM
Subject: Re: Locke v. Davey
Here's the opinion: http://supct.law.cornell.edu:8080/supct/html/02-1315.ZS.html
I greatly appreciate Rick's gracious and thoughtful
response. I hope that when he returns to South Bend he'll be able to fill
us in further on this question.
Rick's principal argument with respect to the "No
public money" provision of article 11, section 1 appears to be that "the provision
I agree with Marci that the precedental force
of Lukumi has taken a
serious hit. But I don't think it's quite as severe as she suggests.
For one thing, it seems clear that Lukumi would continue to prohibit
religious discrimination, even absent proof of animus or hostility,where
the state
http://www.courtinfo.ca.gov/opinions/documents/S099822.PDF
California generally requires
employers providing health insurance to their employees to ensure that such
insurance covers the costs of contraception. California has enacted a
limited religious accommodation that exempts certain
Marci: I did not say that all
statute-specific accommodations are unconstitutional. Far from it. I
think, for instance, that the title VII exemption at issue in Amos is
constitutional (at least as applied to nonprofit employers), as are the peyote
exemptions, as is the post-Goldman military
Linda Greenhouse's initial review
of Justice Blackmun's papers -- http://www.nytimes.com/2004/03/04/politics/04BLAC.html?hp--
reveals that Justice Kennedy was originally the author of a 5-4 decision
upholding the school prayer in Lee, but after several months he
conceded that his "draft
Excellent, concise summary provided by Chip Lupu
and Bob Tuttle at
http://www.religionandsocialpolicy.org/legal/legal_update.cfm?id=23#fnB6.
I would add to it only a minor elaboration.
Chip and Bob conclude -- correctly, in my view -- that after Davey the
only state exclusions of religion
See generally Kent
Greenawalt, Teaching About Religion
in the Public Schools, 18 J.L.
Pol. 329 (2003); Jay D. Wexler, Preparing for the Clothed Public Square: Teaching About Religion, Civic
Education, and the Constitution, 43
Wm. Mary L. Rev. 1159 (2002).
- Original Message -
And an indispensible text discussing this distinction in the context of the
Free Speech Clause is Kent Greenawalt's Speech, Crime, and the Uses of
Language.
- Original Message -
From: Berg, Thomas C. [EMAIL PROTECTED]
To: Law Religion issues for Law Academics [EMAIL PROTECTED]
Sent:
http://www.supremecourtus.gov/oral_arguments/argument_transcripts/02-1624.pdf
- Original Message -
From: Rick Duncan [EMAIL PROTECTED]
To: [EMAIL PROTECTED]; Law Religion issues for Law Academics
[EMAIL PROTECTED]
Sent: Monday, April 05, 2004 3:19 PM
Subject: Re: under God
Is the
It appears that Virginia has petitioned from the
CTA4 decision in Madison v. Riter. http://www.roanoke.com/roatimes/news/story165342.html.
Does anyone have the cert. petition? If so,
please post it (or a link).
Presumably the petition is predicated on the
circuit split caused by Cutter v.
to seek cert., and/or whether the plaintiffs
in Bass will oppose cert. on the first question presented?
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Thursday, April 08, 2004 12:10
PM
Subject: Cert. Petition in RLUIPA
Case
No, definitely *not* what anyone would want happening to them!
- Original Message -
From: Lawrence VanDyke [EMAIL PROTECTED]
To: [EMAIL PROTECTED]
Sent: Sunday, April 11, 2004 8:39 PM
Subject: RE: Religionlaw Digest, Vol 6, Issue 9
Hey Mark - I subscribe to the UCLA religion and
May I respectfully suggest that we put an end to this thread? There has
been a lot of heat, virtually no light, no one changing or affecting anyone
else's views, at least two inadvertant private posts accidently sent to the
list, etc. (This is not meant as directed especially to Rick; his simply
Footnote 17 of the Repondents' Brief in Hurley, which speaks for
itself and which fully explains the ACLU's state-action argument:
FN17. One amicus, the American Civil Liberties Union, argues that
the state courts did not fully explore the way in which the City's
longstanding pattern
Uh, that should be
constitutional.And it's a section 2(b)(1) case, too --
probably the mostdifficult subsection to justify under section
5.
- Original Message -
From: "Michael MASINTER" [EMAIL PROTECTED]
To: "Law Religion issues for Law Academics"
[EMAIL PROTECTED]
Sent:
until the
SG files briefs for the Respondent United States. If such briefs are filed
by May 28th, then the Court will act on the petition(s) this Term (i.e.,on
or before June 28th).
- Original Message -
- Original Message -
From:
Marty Lederman
To: Law Religion
Well, I agree that Justice Scalia's disavowal of
theBoerne "proportionality and congruence" test -- and his
proposal to further eviscerate section 5 in all but race-discrimination cases --
is interesting, in a "how low can he go?" sort of way. But it's
hardly the most important news of the
1. I assume, Eugene, that you meant to write
"Following Locke v. Davey, is it unconstitutional for
the government to say that 'religious activity is specifically
prohibited'?"
If the answer to that question is "yes," I
don't think it's because of the Widmar/Lamb's Chapel
line of cases.
What would be the conceivable state interest in
imposing such a targeted tax? Assuming there is no legitimate interest in
singling out "theology from a devotional perspective,"the classification
would violate the Equal Protection Clause, and presumably the Free Exercise
Clause as well, per
life
accessible to a historically marginalized population.
- Original Message -
From:
Samuel Bagenstos
To: Marty Lederman ; Law
Religion issues for Law Academics ; [EMAIL PROTECTED]
Sent: Friday, May 28, 2004 9:07 AM
Subject: Re: Lane v. Tennessee
I think there is more
Title: Gay Activists Threaten Church Tax-Exempt Status
This appears to be the hot-button issue of the day,
what with today's New York Times front-page story about Bush's attempt to use
churches for electioneering (http://www.nytimes.com/2004/06/03/politics/campaign/03CHUR.html?hp),
and the
I'm a bit unclear on one part of Doug's post.
Are you saying, Doug,
(i) that the church is differently situated
because, unlike secular nonprofits, it can't (or realistically won't be able to)
set up an affiliate through which to engage in political speech (if so, why is
that true?), or,
Virginia Reply Brief in RLUIPA Case
Virginia has filed its Reply Brief in support of its petition in No.
03-1404, Bass v. Madison, arguing that the Court should grant certiorari not
only on the question of the Establishment Clause challenge to RLUIPA (a
question that both the
From today's Washington Post (http://www.washingtonpost.com/ac2/wp-dyn/A26244-2004Jun8?language=printer):
House Republican leaders have tacked on to a major jobs bill a provision
that would give religious leaders more freedom to engage in partisan politics
without endangering the tax-exempt
Assuming that the news reports of the President's
plea to the Vatican are accurate, see, e.g., http://www.talkingpointsmemo.com/archives/week_2004_06_13.php#003064(President
allegedly asked for the Vatican's
help in encouraging the U.S. bishops to be more outspoken"on the cultural
front"),
Justice Stevens wrote the Opinion
of a five-Justice Court, reversing the decision of the U.S. Court of
Appeals for the Ninth Circuit on standing grounds. Chief
Justice Rehnquist and Justices O'Connor and Thomas each wrote opinions concurring in the judgment,
concluding that Newdow did have
I don't wish to become entangled in this increasingly ad
hominem debate; andI suppose I regret starting the thread, seeing as how
the question appears to have been willfully misconstrued and turned to other
ends. But for what it's worth, I think it should be quite obvious from my
prior
://www.goldsteinhowe.com/blog/files/Newdow%20Final%20Brief.pdf--
that if Lee v. Weisman was correctly decided, then public schools may
not lead students in daily recitation of the words "under God." Thomas,
however, would overrule Lee.
- Original Message -
From:
ly recitation of the words "under God."
Thomas, however, would overrule Lee.
- Original Message -
From: "Marty Lederman"
[EMAIL PROTECTED]
To: "David Cruz"
[EMAIL PROTECTED];
[E
In the category of being hoist by one's own petard: A
friendly reader notes that I, too, misspelled "berserk." J
My sincerest apology.
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Monday, June 14, 2004 12:52
PM
Mark apparently wanted to recollect what it's like
to take a law-school exam: He just finished parrying 26 Questions
(many of them with mulitple subparts!) on Newdow in one hour, in a
public QA on the Washington Post website:
Term. This
appears to mean that for at least the remainder of this year, section 3 of
RLUIPA will, in effect, be inoperative in prisons in Michigan, Ohio, Kentucky
and Tennessee.
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent
Sorry: The font on that
post came through garbled for some reason. Here it is again.
I agree with Eugene that theres
not much of a compelled speech problem here, for reasons the Court explained
in Southworth. (Of course, its not quite as easy as
that, because of cases such as Dale,
I agree with Doug that unconstrained discretion to
discriminate on the basis of viewpoint would be problematic. And Doug, who
filed an amicus brief in the case, presumably knows more than I about the way in
which the SchoolDistrict's policy was implemented "on the ground."
Perhaps the
I find this Florida case befuddling in an important
respect -- Why is the Free Exercise/Locke v. Davey question even at
issue on appeal?
1. The Florida Legislature enacted a voucher plan
that applies to religious and non-religious schools alike.
2. The Circuit Court found that,
because
What's remarkable is that the Court did exactly the
opposite of what the SG urged -- it granted in Cutter and held in
Bass v. Madison. Therefore not onlymust defenders of the
statutefile their briefs topside, but they must address all of the
constitutional arguments-- Commerce andSpending,
arguments "must" be addressed
topside.) The SG had urged the Court to hold Cutter, and to deny
cert. on the Commerce and Spending questions in Bass, precisely in
order to avoid this scenario and to focus the case on the EC question.
- Original Message -
From:
Mart
Marc's question was not whether the school could
prohibit distribution of religious literature; as I understand it, it was
whether the school could prohibit literature distributors from targeting Jewish
students as the audience for the literature, regardless of its
content. I think the
Eugene and Marc are, of course,correct:
The case is not quite as simple as I suggested. Let me try to
break down the questions they raise:
1. Could a state prohibit private
discrimination "on a public sidewalk" generally? Well, no legislature
would ever do so, because we are nowhere near
Well, I don't disagree with the Court's recent
decisions that proselytizing should receive as much free speech protection, as a
doctrinal matter, as other forms of attempted persuasion. And I certainly
do not think that an "endeavor should get less protection
becausethe subject of the
Doug's Harvard Comment on Newdow and
Davey is now available online at http://www.harvardlawreview.org/issues/118/1_laycock.pdf.
I haven't read it yet, but in light of Doug's amicus briefs in both cases (as
well as his contributions to this list regarding both of them), I'm willing to
wager
If I understandTom's post correctly, he
agrees with the majority in the Florida casethat there is no
FreeExercise violation here because Florida (i.e., the state courts,
construing the legislature's intent as to "severability") is
nottreating religious schools unfavorably vis-a-vis
ould also
require the closure of forums in many cases where the excluded
perspective was not religious? In other words, do you agree that
the Florida court's rationale could cut a very wide swath through the
previous equal-access logic of "accept the excluded group or close the
forum altogeth
I've posted the following notice on SCOTUSblog: http://www.goldsteinhowe.com/blog/archive/2004_11_28_SCOTUSblog.cfm#110202070029645176.
Temporary Stay of Injunction in "Hoasca Tea"
Case
Three weeks ago, the en banc U.S. Court of Appeals for the Tenth Circuit
Actually, I see no reason at all to think that this
religion is in any way bogus -- any more than mainstream religions with which we
are much more familiar. More to the point, it need not be an actual
established "religion," as such, in order to be protected by title VII's
religious
In very brief: Under the "government speech"
doctrine, a state may require its teachers, in their official
capacities (i.e., while teaching), to hue to the state's prescribed
curriculum. This is the majority view in the courts of appeals -- that
there is no Free Speech Clause right of
t Nam era, but I do not remember
recent case law to this effect. But then they say that recent memory
always goes first /
Marc Stern
From: [EMAIL PROTECTED]
[mailto:[EMAIL PROTECTED]] On Behalf
Of Marty Lederman
Sent: Monday, December 06, 2004
The Acting SG has filed a brief in support of the display of the Ten
Commandments in the case arising from McCreary County, Kentucky:
http://goldsteinhowe.com/blog/files/McCreary.03-1693.Brief.pdf
___
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To
stay of injunction or, in the alternative, to recall and
stay the mandate presented to Justice Breyer and by him referred to the
Court is denied. The temporary stay entered December 1, 2004, is
vacated."There was no indication of any dissent.[Addendum
from Marty Lede
A complicated question, I think, Alan. I
assume, in your hypo, that the state is simply paying for the cost of
bus service, right? -- not actually providing the service
through the auspices of a state-run transporation outfit. Because if the
bus driver were actually an employee of the
Thanks for the links, Mark. I'm sure that many of us will have
disagreements with some of the substance of the book, but I can say right
away and without reservation that the appendices alone make it well worth
one's time and paper-costs to download if you're at all interested in this
issue.
Well, I suppose the reasons that there is
"no conventional Establishment Clause basis for
objecting to my hypotheticals" are that (i) I can't imagine anyone actually
suggesting that state staffing decisions be made on the basis of religion and
(ii) thatit seems clear that it would be
I think I now see what Alan's getting at -- namely,
that he's testing thelegitimacy (or adequacy) of thecurrent
state-action doctrine. This is something that Martha Minow, and very few
others, have been examining lately. Thepuzzle is something like
this:
1. At time A, the state performs
Please excuse the egregious typos scattered
throughout this post (especially where I "hold my breadth"!)-- I was
simply too lazy to proofread this morning, which ought to teach me a
lesson.
- Original Message -
From:
Marty Lederman
To: Marty Lederman ; Law
A link to the Labi article: http://www.legalaffairs.org/issues/January-February-2005/feature_labi_janfeb05.html
- Original Message -
From:
Sanford Levinson
To: Law Religion issues for Law
Academics
Sent: Saturday, January 01, 2005 4:06
PM
Subject: RE: The Amish
Very interesting set of concurrences and dissents in today's CTA9 denial of
an en banc petition in a ministerial exception case:
http://www.ca9.uscourts.gov/ca9/newopinions.nsf/9C615790509C87F488256FA500055365/$file/0235805o.pdf?openelement
___
To
Dahlia Lithwick in Slate on current released-time
programs in Virginia and elsewhere: http://slate.msn.com/id/2113611/.
The U.S. Court of Appeals for the Second Circuit
recently upheld a New York released time program, on the authority of
Zorach, even though the children remaining in the
If I may, this is how Chip described his
grade-school program in his George Washington article on
accommodation:
In his public school in Albany, when Patty H. "scooped up her
blue-and-white paper-covered catechism and headed for religious instruction at
St. Theresa's of Avila, a parochial
A small clarification: The Constitution does
not, as such, prohibit the teaching in publicschools of most "values" that
are central to, and derived from,religion.See, e.g.,
Bowen v. Kendrick, 487 U.S. at 612-13, 621. What it prohibits
are"specifically religious activities," id. at 621,
The Pew Forum has posted the trancscript of their
recent "event" with Doug Laycock and Jay Sekulow on tomorrow's two Ten
Commandments cases:
http://pewforum.org/events/index.php?EventID=69
I haven't read through the whole thing, but Doug's
opening presentation is terrific -- would make for
Hey, I'm simply trying to prompt worthwhile conversation -- please feel free
to answer whichever questions you think are most interesting!
- Original Message -
From: Richard Dougherty [EMAIL PROTECTED]
To: Law Religion issues for Law Academics religionlaw@lists.ucla.edu;
Law Religion
http://www.scotusblog.com/movabletype/archives/2005/03/transcripts_in_1.html
Transcript(s)
in Ten Commandments Cases
03:45 PM | Marty Lederman | Comments
(1) | TrackBack
(0)
The Associated Press has posted an earlier-than usual transcript of
Wednesday's oral argument in the Texas Ten
And here's the McCreary County
transcript:
http://wid.ap.org/documents/scotus/050302mccrearycounty.pdf
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Friday, March 04, 2005 4:55
PM
Subject: Van Orden Transcript
http
Jack Balkin's prediction:
http://balkin.blogspot.com/2005/03/my-prediction-on-ten-commandments-case.html
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As usual, it appears that we will not be able to change one another's minds
w/r/t the question whether piecemeal legislative accommodations are superior to,
or more constitutionally acceptablethan, judicial accommodations pursuant
to a general statutory mandate. (And we're certainly not
The caselaw and legislative history are fairly clear -- and uniform, as far
as I know-- in holding to the contrary. The general right of
churches to insist that their employees share the church's religious beliefs
cannot be used to circumvent the other prohibitions of title VII. For
A terrific essay in the New Republic:
http://www.tnr.com/doc.mhtml?i=20050321s=diarist032105
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I think that Chip and Bob's analysis is
pitch-perfect. The most questionable part about the program -- aside from
a serious statutory issue that AJC apparently dropped because of standing
concerns -- has always been the $400 grants to Notre Dame. For the reasons
Chip and Bob explain, I'm
purposes, but strays into the EC when it's for recreational purposes.
This, of course, does not answer all questions re: accommodation, but it is my
view that it is the appropriate framework.
Marci-Original Message-From: Marty Lederman
[EMAIL PROTECTED]To: Law Religion issues
Bobby: Agreed!
I would note in this regard, however, that however the difficult cases
might be decided, even as eloquent a proponent of permissive accommdation as
Michael McConnell conceded (60 G.W. L. Rev. 685) that certain tangible "harms"
to third parties could render an exemption
ail/religionlaw/1998-December/013877.html(Dwyer)
http://lists.ucla.edu/pipermail/religionlaw/1998-December/013883.html(McConnell)
http://lists.ucla.edu/pipermail/religionlaw/1998-December/013884.html(Lederman)
It actually goes on quite a ways from there . . .
- Original Message ---
rest. If shifting costs -- even "distinct costs" -- is an
inevitable part of accommodating interests, then some such shifting has
to be allowed if religious conscience is to be given the importance that
the Free Exercise Clause implies. That suggests, at the least, a
weighing of the re
I think this might be a very important case -- or,
at the least, an omen ofthings to come, in a range of cases involving
charitable choice, school vouchers, etc. Indeed, it's the classic "Wiccan"
hypo -- that many of us have been invoking, and wondering about, in various
discussions of
"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
Eugene: Could you clarify your hypo just a
bit to address Doug's question?: Is your "no religion" restriction imposed
only on the government funds, or is there (as in Davey,
Rust, Sabri, etc.) a broader, "segregation"restriction
on the recipient's use of her own funds, on the theory that
Title: Message
Just curious: If the opinion is intentionally
"underreasoned" in order to (i) keep the Court's docket running smoothly; and
(ii) readily bring on board seven votes; and (ii) leave open for further cases
those difficult questions -- not presented in the case itself -- that
[CROSS-POSTED TO CONLAWPROF AND
RELIGIONLAW]
My own school district, in Montgomery County,
Maryland, recently instituted a new sex education curriculum for the 8th and
10th grades,which was to begin in six pilot schools yesterday. A
federal judge issued a TRO enjoining the curriculum
According to this article (http://www.indystar.com/apps/pbcs.dll/article?AID=/20050526/NEWS01/505260481),an Indiana judge has prohibited a pair of divorced
parents from exposing their 9-year-old son to Wiccan beliefs and rituals.
Both parentspractice Wicca, and both strongly oppose the
Subject: Re: More Discrimination Against
Wiccans
Marty Lederman wrote:
According to this article (http://www.indystar.com/apps/pbcs.dll/article?AID=/20050526/NEWS01/505260481),an Indiana judge has prohibited a pair of divorced
parents from exposing their 9-year-old son
e
cases?
Marci
In a message dated 5/26/2005 10:54:45 A.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
Marty Lederman wrote:
According to this article (http://www.indystar.com/apps/pbcs.dll/article?
Now, this is
interesting -- interject the Wiccans into the picture, and all of a
suddenEugene starts sounding a lot more like me (as opposed to, say,
Justice O'Connor) when it comes to the questions of "neutrality" and
"endorsement." This appears to be quite a change from his perspective in
Details to follow.
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Please note that messages sent to this large list
Justice Ginsburg wrote the opinion. There's a
separate Thomas concurrence.
More to follow.
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Tuesday, May 31, 2005 10:05
AM
Subject: RLUIPA Unanimously Upheld in
Cutter
Well, this has been the paradox in Free Exercise
Clause law all along, hasn't it?: That the Court articulated a strict
scrutiny test in Sherbert/Yoder, but never came anywhere close to
applying such a test in the free-exercise context: The government
virtually always won, by hook or by
My SCOTUSblog post on the decision. I welcome
suggestions -- and encourage responses in the "Comments" section of
theblog.
http://www.scotusblog.com/movabletype/archives/2005/05/cutter_v_wilkin.html
Cutter
v. Wilkinson
11:54 AM | Marty Lederman | Comments
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I think it's been clear for a long while that
when the Court cites theLemon test, it's almost an afterthought
-- a pro forma doctrinal appendage or a fig leaf. (This was especially
true in Amos, I think.)That's why many folks who brief
these cases to the Court -- Doug and I included --
I didn't intend to suggest anything otherwise -- I
believe we're in agreement, and apologize for any confusion. Where we
might disagree is on the question of whether "strict" scrutiny was ever
all-that-strict in Free Exercise/RFRA/RLUIPA law.
- Original Message -
From:
. . . or what if -- just hypothetically, of course
-- the federal government systematically and specifically exploited religious
fears, sensitivities and obligations of persons of a particular religion in
order to degrade them and thereby coerce them to talk during interrogations,
such as,
"not implausible"?
OK, so imagine that certain public elementary and
secondary schools, notwithstanding Engle and Schempp and
Santa Fe, continue to engage in prayer before classes and football
games (indeed, I've been told that such practices do, in fact,continue in
many school districts,
Of course, this isn't a context in which religious tests can be eliminated
altogether. (Query: Why isn't it therefore a violation of article VI?) But
the military clergy hiring must be nondenominational, i.e., made without
sectarian discrimination. (But cf. the recent Simpson Wiccan
Yes, that's right, Mark. I do not mean to be referring to "religious motivation," but instead to be referring to a "but for" objective of promoting [expressly] [specifically] [uniquely] [your adjective here] religious actvities/beliefs/doctrines. Of course this is a very fluid concept -- but the
Jim: The proper adjective is Democratic, as in Democratic Party. (But
then, you probably already knew that.) Sorry for the lecture, but this is a
hobbyhorse of mine: The lockstep use of Democrat as an adjective is not only
juvenile, and grating on the ears, it's also quite literally
Actually, I don't think giving or taking offense has much to do with it
(although offense certainly is taken). Indeed, Republic Party folks aren't
even addressing their Democratic counterparts when they use the adjective:
They're addressing the public, and they couldn't care less how we
Constitutional protections . . . should not depend merely on a strict
construction that may allow 'technicalities of form to dictate consequences of
substance.' As the Court remarked in the leading contract clause case of this
century [Blasidell], 'where constitutional grants and limitations
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