Wednesday, March 10

Thinking about Locke v. Davey II

As said below, I agree with the outcome of the case; namely because I would be troubled by the opposite outcome--that states giving financial aid are required to pay for the training of religious leaders. All religious leaders.
In her post in FindLaw, Marci Hamilton explains why the court did not take the strict scrutiny route. It's a great discussion on how this case fits between Lukumi and Emploment Division v. Smith. Smith might be thought of as am equalizing case--believers are subject to the same laws as nonbelievers. So if the state bans peyote smoking, it is banned for religious ceremonies as well. Lukumi, on the other hand, protected a religious practice (animal sacrifice) against a town ordinance. How do these cases square?
Hamilton writes:
The Court found the correct balance between Lukumi and Smith. Here is its sensible framework: General, neutral laws will be applied equally to all, including religious believers, as Smith said, and typically will be upheld. Laws that deal with religion and express animosity to it, will be subject to strict scrutiny, and typically will be struck down, as Lukumi indicated. But -- and here is where Locke comes in -- laws that deal with religion or have some effect on religion, and do not express animosity to religion, will be subject to a lower level of review.

Hamilton and Walter M. Weber (in his post against the Court's decision), point out that the Court did not say that the federal Constitution's Establishment Clause prohibits a state from giving money for religious instruction. I wish it had.
In my mind, many founding period writings (for instance, James Madison's Memorial and Remonstrance) and state constitutions were right to say that the state's funding of religious training is the essence of establishing religion.
Mr. Weber's article, posted on FindLaw as the opposing viewpoint, isn't very satisfying. It offers some great analysis on how limited the decision is, but down not argue the writer's primary point; that the "decision was a serious error."
The extent of his argument is this:
Washington's decision was just what it appeared to be: An instance of explicit religious discrimination that violates students' rights under the U.S. Constitution's Free Exercise Clause.

He then goes on to explain how limited the opinion actually is.