(Rick Garnett wrote this post, and asked me to forward it:) In my view, the Court's opinion in Davey is extremely disappointing. Particularly frustrating, though, is the utterly unconvincing effort, in a footnote, to bracket the anti-Catholicism surrounding the Blaine Amendment, and the grossly mistaken assertion that such views had no role in or relation to the Washington provisions at issue (and the many others like it).
In light of the work done by Philip Hamburger, John McGreevy, and many members of this list -- the content of which was made available to the Court in several amicus briefs (including one in which, I admit, I participated) -- the Court's naked assertion that the relevant Washington provisions, unlike the proposed Blaine Amendment proper, owe nothing to anti-Catholicism is (to me anyway), well, shocking. To be clear, my claim here is not that historical facts about 19th century anti-Catholicism should control the outcome in this case. It is certainly not that present-day defenders of Washington's policy are anti-Catholic. I had hoped, though, that the facts would not be ignored or misrepresented. Justice Black, perhaps, was excusably ignorant in the construction of the narrative he constitutionalized in Everson. I don't think this Court has that excuse. _______________________________________________ To post, send message to [EMAIL PROTECTED] To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
