I don't quite understand this. Steve himself says "A state may
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
--
Prof. Steven D. Jamar vox: 202-806-8017
Howard University School of Law fax: 202-806-8567
2900 Van Ness Street NW mailto:[EMAIL PROTECTED]
Washington, DC 20008 http://www.law.howard.edu/faculty/pages/jamar/
A word is dead
When it is said,
Some say.
I say it just
Begins to live
That day.
Emily Dickinson 1872
_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
