Dear Anthony, You're right; I based my comment on the first statement posted, and the second one, which you posted, does speak to the crucial categories of religious liberty cases that were not mentioned in the first one. I am less positive on government displays of creches and the 10 Commandments than you guys are, for reasons I've stated in a couple of recent weblog posts -- mostly having to do with the integrity and independence of religion from government. http://www.scotusblog.com/discussion/archives/2005/06/importance_not.html#co mments <http://www.scotusblog.com/discussion/archives/2005/06/importance_not.html#c omments> <http://www.mirrorofjustice.com/mirrorofjustice/2005/06/should_we_care_.html > http://www.mirrorofjustice.com/mirrorofjustice/2005/06/should_we_care_.html My point was not that the O'Connor distinction in Mitchell and Zelman was based on a convincing rationale. My point was only -- again in response to the first statement -- that the distinction sets up a reasonably clear line, and didn't suffer from the defect of (as the first statement put it) leaving every new dispute "in doubt until the moment Justice O'Connor voted because even her own precedents could not predict the outcome of new cases." Tom
_____ From: Anthony Picarello [mailto:[EMAIL PROTECTED] Sent: Sat 7/2/2005 6:39 PM To: Law & Religion issues for Law Academics Subject: RE: Pop Quiz: Justice O'Connor and the Religion Clauses Our posts may have just crossed, but just to reiterate, our point was not that O'Connor was always wrong on the Establishment Clause, or that we would never celebrate any of her EC decisions. It was that her decisions were hit-and-miss, especially under the EC, and that it's very hard to come up with a principled way to explain (or predict) those decisions. And we don't view that problem to be limited to the government religious expression cases. You raise a good example in the distinction b/w Mitchell and Zelman. Her direct / indirect aid distinction is based in part on endorsement concerns (Mitchell at 842-43). Even where the aid follows parental choice by following the students to the school per capita, as in Mitchell, if the check goes directly to the school, the money can't be applied toward religious purposes, because it just looks worse to her (and to Breyer). But if the parents get a check that they can't use for any purpose other than to endorse over to the school, as in Zelman, it looks OK to her (but not to Breyer). Yes, this distinction is administrable: it should be relatively easy for lower courts to tell whether the gov't aid check went to the student's home first, or went directly to the school. But her reason for treating cases differently across that admittedly clean line is still highly subjective and, in my view, difficult to defend. -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Berg, Thomas C. Sent: Saturday, July 02, 2005 3:22 PM To: Law & Religion issues for Law Academics Subject: RE: Pop Quiz: Justice O'Connor and the Religion Clauses It's also the case that after some hemming and hawing (along with others on the Court), O'Connor came down firmly on the side of allowing religious schools in school choice programs. She did still cast the key vote to limit direct aid -- even when figured on a per-capita formula -- based on a rather thin "it looks worse" sort of argument (the very kind of O'Connor argument that regularly frustrated a lot of us). Nevertheless: (1) her key vote for vouchers should be viewed as a great contribution by those of us (including the Becket Fund) who see school choice as most consistent with religious liberty; and (2) the line that she drew between "true private choice" and direct aid is not all that murky or subjective, and seems pretty administrable. I think that condemning O'Connor for drawing unclear lines in religion cases is an example of letting the emotional religious-symbols cases dominate the analysis, as against what are (to my view) more important areas for the substance of religious liberty. Tom Berg University of St. Thomas School of Law (Minnesota) _____ From: Alan Brownstein [mailto:[EMAIL PROTECTED] Sent: Sat 7/2/2005 11:59 AM To: Marty Lederman; Law & Religion issues for Law Academics Subject: Re: Pop Quiz: Justice O'Connor and the Religion Clauses I think Marci is right. O'Connor's position wasn't just technically different than the majority in Smith. She recognized the value of indeterminacy in this area. Even if the Supreme Court ruled against religious plaintiffs in many pre-Smith free exercise cases, the recognition that general laws and adminstrative decisions burdening free exercise rights could be subject to judicial review forced political decision makers to think twice and opened the door to accommodations and compromises. The Court in the Smith decision recognized that any meaningful protection for free exercise rights against general laws would be imprecise and indeterminate in its application. So it choose clarity over liberty. I have always believed that was a serious error. So did O'Connor. I thought the Becket Fund did too. There probably isn't a church-state scholar or lawyer in the country who wasn't frustrated some of the time by O'Conner's subjectivity. But unless the Becket Fund has changed its position on Smith and RFRA, its comment on SOC demonstrated poor judgement as well as bad taste. Perhaps this reflects my own lack of judgement, but I expected better of you guys. Alan Brownstein UC Davis > > Marci writes that "while it is true that she has altered the = > Establishment Clause jurisprudence, she has not been in the majority on = > the Free Exercise Clause since 1990 and Smith." > > That is, of course, nominally (or technically) correct. But has SOC = > really been that far from where the Court truly was on FEC questions? = > See, e.g., her concurrence in Smith, and, especially, her opinion for = > the Court in the answer to my Question No. 1. > ----- Original Message -----=20 > From: [EMAIL PROTECTED] > To: [EMAIL PROTECTED] > Sent: Saturday, July 02, 2005 11:53 AM > Subject: Re: Pop Quiz: Justice O'Connor and the Religion Clauses > > > I guess the Becket Fund won't be citing Justice O'Connor's backing of = > strict scrutiny under the Free Exercise Clause in its future works? I = > would have thought those who would attack her would have given her the = > weekend to be lauded. But I'm a former clerk and extremely fond of her. > = > > > With respect to her influence on the Religion Clauses-- while it is = > true that she has altered the Establishment Clause jurisprudence, she = > has not been in the majority on the Free Exercise Clause since 1990 and = > Smith. > > > > Marci > > _______________________________________________ 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 <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.
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