It's great to see Professor Garnett contributing to
the list on Davey; he has addressed these issues with uncommon insight,
rigor and nuance, and our discussion undoubtedly will be richer and more
thought-provoking for his participation.
A great number of things in the Chief's opinion
may,
(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 m
I see Alan's concern, and this may be semantics on my part, but I would
read both the Establishment Clause (Larson) and the Free Exercise Clause
(note Lukumi's citation to Larson in discussing the religious
gerrymander point) to directly forbid, directly and virtually
absolutely, any type of sectar
I think that argument probably works if one reads the Establishment Clause
broadly to prohibit discrimination among religious communities. But
certainly, the anti-discrimination concerns of the equal protection clause
extend far beyond what the free exercise clause requires. For example,
imagin
[I sent the following message to the list 2 hours ago, in response to
Stuart Buck's message, but my message never appeared, leading me to
conclude that it might be lost in cyberspace. My apologies for any
duplicate posting, especially since Marty's intervening message made a
point very similar to
In this Ten Commandments case, a majority found a religious purpose in the
city's acceptance of a Ten Commandments plaque from the Order of Eagles. The
Court attributed the Eagles religious purpose to the city (there being no
extant evidence of the city's purpose).The dissenting judge objected to
Title: Message
I would amend Professor Conkle’s proposition:
“a religious classification is – or should be –
constitutionally suspect if, but only if it (presumptively) violates the
principles and values of the Religion Clauses.” Conflating the First Amendment clauses is
difficult to def
I think that the key to the case is the remark that "the subject of
religion is one in which both the United States and state constitutions
embody distinct views -- in favor of free exercise, but opposed to
establishment -- that find no counterpart with respect to other callings
or professions." A
Title: Message
I'm inclined
to think that the answer to Marty's question is - or should be - that if
the Religion Clauses (and free speech principles) are not offended by a
religious classification, then the Equal Protection Clause should not be
offended either, because any equal protection
I think you're overreading the Chief's sentence
about how the program "does not
require students to choose between their religious beliefs and
receiving a government benefit." The entire rest of the opinion -- i.e.,
all of the opinion except for that sentence and the
appended footnote -- e
I think a lot - and perhaps too much - work is being done by footnote 4
of the Court's opinion, which is attached to the Court's claim that the
scholarship condition "does not require students to choose between their
religious beliefs and receiving a government benefit."
Footnote 4 reads as follow
Very minor question about a potentially important
footnote point in Davey. The Court holds in footnote 3 that where
the Free Exercise Clause is not violated, religious discrimination is subject
only to rational-basis scrutiny under the Equal Protection Clause -- citing
Johnson v. Robison, w
The central portion of the opinion is also the weakest:
QUOTE: We reject his claim of presumptive unconstitutionality, however; to
do otherwise would extend the Lukumi line of cases well beyond not only
their facts but their reasoning. In Lukumi, the city of Hialeah made it a
crime to engage in
Here's the opinion: http://supct.law.cornell.edu:8080/supct/html/02-1315.ZS.html
- Original Message -
From:
Marty Lederman
To: Law & Religion issues for Law
Academics
Sent: Wednesday, February 25, 2004 10:22
AM
Subject: Re: Locke v. Davey
7-2, with dissen
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
Ninth Circuit reversed, in an opinion by the
Chief! Details to follow.
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