In many cases the conservative justices have argued that the Establishment Clause requires neutrality among religious denominations or sects, but not neutrality toward religion in general. If a majority of justices were to endorse this view, no doubt doctrine would shift in a direction more pleasing to many conservatives. Quite a gap still remains between the "liberal activist" strict separationists, and the conservatives on the Court.
If we read separation to forbid a national church, all justices would agree. If we read it to mean no discriminatory treatment in favor of a specific religious group, or no policies specifically designed to advance a particular denomination, the conservatives would still agree. Only if separation demands an utter lack of governmental support, endorsement or encouragement of religion in general would the conservatives part company. So one answer is semantic: conservatives read "separation" more narrowly. If we agree that separation does demand strict neutrality (or arguably hostility) toward religion, then conservatives signing on to such an opinion might be more significant, as Jim Oleske suggests. However, even then, a more likely explanation is that justices do not necessarily endorse every generic, boilerplate phrase included in an opinion that they join. Dennis Coyle Catholic University of America -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] Behalf Of Jim Oleske Sent: Wednesday, June 01, 2005 6:21 PM To: religionlaw@lists.ucla.edu Subject: Cutter and the Separation of Church and State In Cutter, the Court starts its analysis by flatly stating that the Establishment Clause "commands a separation of Church and State." Given the considerable effort in conservative legal circles to discredit the separation doctrine,* how notable do people think it is that Chief Justice Rehnquist and Justices Scalia and Thomas all joined the Court's opinion in Cutter? And where does a unanimous Supreme Court decision reaffirming the separation principle leave the "separation-is-a-liberal-activist-myth" movement? A doctrine unanimously adopted by the Court in the post-WWII era and unanimously reaffirmed by the Rehnquist Court would seem difficult to pin on liberal activists. * See, e.g., Robert Bork's review of Philip Hamburger's book, in which Bork concludes: "As constitutional doctrine, the [separation] myth should be viewed with contempt." http://www.law.uchicago.edu/news/bork-church_state.html __________________________________________________ Do You Yahoo!? Tired of spam? Yahoo! Mail has the best spam protection around http://mail.yahoo.com _______________________________________________ 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. _______________________________________________ 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.
