I agree that play in the joints is a way to describe how to handle the problem of those situations where general principles of non-establsihment run into general principles of free exerice. However, I do not think that maximalist equality or free exercise+equality captures the range of free exercise interests and principles at stake.
There are not hard edged rules in some hard cases. They simply cannot be decided syllogistically or even on a principled balance of principles. Some things are just ad hoc and highly fact dependent and based on judgments the premises for which are not always fully articulated or even articulable. I think both Rosenberger and CLS are this type of case. There are lots of words there, but at the end of the day, neither one is fully defensible on any particular principle or set of principles that anyone would apply rigorously across the board. Steve > On Jan 17, 2016, at 12:58 PM, Levinson, Sanford V <slevin...@law.utexas.edu> > wrote: > > Shouldn't we admit that "play in the joints" is simply a euphemism for > judicial balancing between the competing notions of no establishment, on the > one hand, and free exercise+equality on the other. Neither makes sense as > maximalist theory. The former would prohibit police protection, the latter > would require the state to build churches if it auditoria for the people to > use as gathering places to discuss important issues. So we rely on > Rehnquist's and his successors' hunches as to where one should draw the line. > We delude ourselves in believing that legal doctrine can work itself pure in > this--or, for that matter, any other significant--area. "The life of the law > is experience, not logic." > > The problem is that it is awkward for well-paid law professors to teach their > students that law often comes down to the idiosyncratic views of the median > justices and that it is basically foolish to believe there are true doctrinal > rationales that can predict future decisions. > > Sandy > > Sent from my iPhone > > On Jan 17, 2016, at 7:45 AM, Steven Jamar <stevenja...@gmail.com > <mailto:stevenja...@gmail.com>> wrote: > >> It seems to me that the play-in-the-joints theory and providing >> accommodations between exercise and establishment shoiuld win out in this >> instance thereby upholding the Missouri Constitutional ban on direct and >> indirect financial support for religious organizations. >> >> A ruling that pushes the neutrality principle this far as to prohibit states >> from making these sorts of choices and judgments seems likely to further >> make a hash of the problem rather than simplifying or clarifying things. A >> rule that allows for such subsidy of religion by the state while allowing >> states not to so subsidize religions in these ways seems to be what the >> voucher cases seem to indicate as the direction the law is going. >> >> But as for me, all bets are off on this one as to result and as to theories >> selected from the grab-bag the court has created over the decades. >> >> Steve >> >> -- >> Prof. Steven D. Jamar >> Howard University School of Law >> vox: 202-806-8017 >> fax: 202-806-8567 >> http://sdjlaw.org <http://sdjlaw.org/> >> >> “The two most important days in your life are the day you are born and the >> day you find out why.” >> Mark Twain >> >> -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org http://sdjlaw.org "A word is not a crystal, transparent and unchanged, it is the skin of a living thought and may vary greatly in color and content according to the circumstances and the time in which it is used." Justice Oliver Wendell Holmes in Towne v. Eisner, 245 U.S. 418, 425 (1918)
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