The government can "establish" lots of things (or seek to), e.g., patriotism, individualism, tolerance. But it cannot establish religion. It therefore must discriminate in what it chooses to establish on the basis, at least in part, of religion.
The government can ban all sorts of behavior and can zone property in all sorts of ways. But it cannot zone in such a way as to exclude all religious buildings or activity. It could prohibit all multiple-unit dwellings. Or all heavy industry. Or all educational institutions. But it can't do that with respect to religion. This is discrimination for religion.
Discrimination is not a sufficiently robust concept to handle the inevitable conflicts and nuances involved in religious cases.
The principles of non-discrimination and equal treatment have their place in constitutional religious freedom analysis, but they are not sufficient. Nor is accommodation. Nor is coercion. Nor is separation.
The tension exposed in no-taxpayer support v. non-discrimination in the voucher cases can be resolved either by favoring one theory over the other a la the Rosenberger case (favoring "equal treatment" over "no funding") or through some other balancing approach which forthrightly recognizes the conflict and chooses not to go one way or the other on the basis of selecting which principle has priority, but rather choosing, in the Justice O'Connor mode, a nuanced, case by case analysis in which such principles play a part in the decision.
Of course this does not give us bright-line tests, which in itself creates problems.
But this, it seems to me, is the very nature of the beast and it cannot be tamed or beaten out of it no matter how many of us try to dance on the head of that metaphorical pin of logical consistency.
Steve
-- Prof. Steven D. Jamar vox: 202-806-8017 Howard University School of Law fax: 202-806-8428 2900 Van Ness Street NW mailto:[EMAIL PROTECTED] Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar
"The only things truly worth doing cannot be accomplished in a single lifetime."
Prof. Goler Teal Butcher, after Reinhold Neibuhr
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