Monday, March 01, 2004
The Supreme Court Is Wrong Again II
On the same day I posted my feelings about the Davey case, the Institute for Justice sent out a very optimistic email contending that the decision did not hurt the cause of school choice because it was reached over the narrow issue of public funds used for training clergy. Well, the organization must have received a lot of criticism over the message because today I received another email explaining in detail their original findings. I wanted you to be able to see it also so I have included it below:
M E M O R A N D U M
TO: School Choice Allies
FROM: Chip Mellor and Clint Bolick
RE: Candid Thoughts on Davey
DATE: March 1, 2004
Many of you have read our fairly optimistic assessment of the U.S. Supreme
Court's decision in Locke v. Davey. In light of doom-and-gloom reactions
among some in the media--and even some of the lawyers on our side (not to
mention Justice Scalia's dissenting opinion)--some of our friends have asked
us, "What do you really think?"
As "happy warriors" for freedom, we will always emphasize the positive--what
can be salvaged from an adverse decision, how a single decision is not the
end of our fight, and so on--but never to the point of misrepresenting or
obscuring the truth. Our initial statements are not spin. Though popular
perception may differ--and certainly our adversaries have a stake in
that--this decision, by its terms, does not hurt K-12 school choice
programs.
We had hoped the Court would take on the issue of the Blaine Amendments and
issue a broad ruling that states may not discriminate against religious
educational options, period. In light of hostile questioning by many of the
justices at the oral argument where lawyers for the American Center for Law
and Justice presented the case, we feared the worst. But, the actual
decision was not nearly as bad as it could have been. The Court went out of
its way to issue a narrow decision, and it preserved for another day the
issue of the Blaine Amendment and discrimination against religious options
in general.
Just as he did in Zelman, Chief Justice William Rehnquist wrote for the
majority. He framed the issue very narrowly: whether a state can exclude
students who wish to use scholarship funds to pursue "religious instruction
that will prepare students for the ministry" from otherwise available
student aid programs. This issue, he said, falls into the gray area between
what the Establishment Clause of the First Amendment forbids and the Free
Exercise Clause requires. As a baseline principle, citing Zelman, he
declared that "[u]nder our Establishment Clause precedent, the link between
government funds and religious training is broken by the independent and
private choice of recipients... As such, there is no doubt that the State
could, consistent with the Federal Constitution, permit [scholarship
recipients] to pursue a degree in devotional theology." It is very
noteworthy that all justices have signed off on that proposition. There
were no separate concurring opinions quibbling with that point. That means
Zelman stands on the same ground it did before this case.
Rather, the question the Court addressed is whether states are required to
offer scholarships to students preparing for the ministry when they offer
scholarships to other students, and that is where the decision is narrow.
The decision mentions at least 28 times in only 12 pages the issue that they
felt concerned them in this case: taxpayer money being used to fund training
for the ministry. The decision spends a great deal of time on the history
of state prohibitions against funding the clergy, which resulted from
"popular uprisings against procuring taxpayer funds to support church
leaders," and resulted in state constitutional provisions that "prohibited
any tax dollars from supporting the clergy." The opinion observes that
apart from the ministry exclusion, the program "goes a long way toward
including religion in its benefits." The Court is thus implying that a
broader exclusion might present a different question. It made the limits of
its decision explicit: "We need not delve further into this difficult area
in order to uphold the [program]."
The Court did make the debatable decision that the Washington provision was
not a Blaine Amendment. By taking the state at its word on that point, the
Court left open the very real possibility that a case presenting a Blaine
Amendment with its history of bias against religion would receive a higher
level of scrutiny. That might help to explain why Chief Justice Rehnquist
and Justice Anthony Kennedy, both of whom joined an opinion by Justice
Clarence Thomas a few years ago condemning the Blaine Amendment in the
strongest possible terms, could join the majority opinion here.
None of this is to say that the decision will not present an obstacle. Our
opponents will undoubtedly misrepresent it and hostile judges will likely
cite it and expand upon it to rationalize anti-school choice decisions.
Nevertheless, the decision, by its terms, is clearly limited to education
for the ministry. The majority was exceedingly careful in that regard.
Thus, even if we receive adverse decisions under Blaine Amendments in other
states, we will still have a potential avenue of appeal in the U.S. Supreme
Court. For now, the battle goes back to the state courts where litigation
remains a central part of the school choice landscape.
Please contact us if you'd like a copy of the decision. Reading it will
reassure school choice advocates that the opinion is far from the disaster
that our opponents are portraying it.
As always, with thanks for your support, and best wishes. We look forward
to continuing the fight for educational freedom alongside you!
PermaLink | 5:53 PM |
|
M E M O R A N D U M
TO: School Choice Allies
FROM: Chip Mellor and Clint Bolick
RE: Candid Thoughts on Davey
DATE: March 1, 2004
Many of you have read our fairly optimistic assessment of the U.S. Supreme
Court's decision in Locke v. Davey. In light of doom-and-gloom reactions
among some in the media--and even some of the lawyers on our side (not to
mention Justice Scalia's dissenting opinion)--some of our friends have asked
us, "What do you really think?"
As "happy warriors" for freedom, we will always emphasize the positive--what
can be salvaged from an adverse decision, how a single decision is not the
end of our fight, and so on--but never to the point of misrepresenting or
obscuring the truth. Our initial statements are not spin. Though popular
perception may differ--and certainly our adversaries have a stake in
that--this decision, by its terms, does not hurt K-12 school choice
programs.
We had hoped the Court would take on the issue of the Blaine Amendments and
issue a broad ruling that states may not discriminate against religious
educational options, period. In light of hostile questioning by many of the
justices at the oral argument where lawyers for the American Center for Law
and Justice presented the case, we feared the worst. But, the actual
decision was not nearly as bad as it could have been. The Court went out of
its way to issue a narrow decision, and it preserved for another day the
issue of the Blaine Amendment and discrimination against religious options
in general.
Just as he did in Zelman, Chief Justice William Rehnquist wrote for the
majority. He framed the issue very narrowly: whether a state can exclude
students who wish to use scholarship funds to pursue "religious instruction
that will prepare students for the ministry" from otherwise available
student aid programs. This issue, he said, falls into the gray area between
what the Establishment Clause of the First Amendment forbids and the Free
Exercise Clause requires. As a baseline principle, citing Zelman, he
declared that "[u]nder our Establishment Clause precedent, the link between
government funds and religious training is broken by the independent and
private choice of recipients... As such, there is no doubt that the State
could, consistent with the Federal Constitution, permit [scholarship
recipients] to pursue a degree in devotional theology." It is very
noteworthy that all justices have signed off on that proposition. There
were no separate concurring opinions quibbling with that point. That means
Zelman stands on the same ground it did before this case.
Rather, the question the Court addressed is whether states are required to
offer scholarships to students preparing for the ministry when they offer
scholarships to other students, and that is where the decision is narrow.
The decision mentions at least 28 times in only 12 pages the issue that they
felt concerned them in this case: taxpayer money being used to fund training
for the ministry. The decision spends a great deal of time on the history
of state prohibitions against funding the clergy, which resulted from
"popular uprisings against procuring taxpayer funds to support church
leaders," and resulted in state constitutional provisions that "prohibited
any tax dollars from supporting the clergy." The opinion observes that
apart from the ministry exclusion, the program "goes a long way toward
including religion in its benefits." The Court is thus implying that a
broader exclusion might present a different question. It made the limits of
its decision explicit: "We need not delve further into this difficult area
in order to uphold the [program]."
The Court did make the debatable decision that the Washington provision was
not a Blaine Amendment. By taking the state at its word on that point, the
Court left open the very real possibility that a case presenting a Blaine
Amendment with its history of bias against religion would receive a higher
level of scrutiny. That might help to explain why Chief Justice Rehnquist
and Justice Anthony Kennedy, both of whom joined an opinion by Justice
Clarence Thomas a few years ago condemning the Blaine Amendment in the
strongest possible terms, could join the majority opinion here.
None of this is to say that the decision will not present an obstacle. Our
opponents will undoubtedly misrepresent it and hostile judges will likely
cite it and expand upon it to rationalize anti-school choice decisions.
Nevertheless, the decision, by its terms, is clearly limited to education
for the ministry. The majority was exceedingly careful in that regard.
Thus, even if we receive adverse decisions under Blaine Amendments in other
states, we will still have a potential avenue of appeal in the U.S. Supreme
Court. For now, the battle goes back to the state courts where litigation
remains a central part of the school choice landscape.
Please contact us if you'd like a copy of the decision. Reading it will
reassure school choice advocates that the opinion is far from the disaster
that our opponents are portraying it.
As always, with thanks for your support, and best wishes. We look forward
to continuing the fight for educational freedom alongside you!
PermaLink | 5:53 PM |
| 
