Unused and Probably Unusable

the Dark Goddess of Replevin Speaks... and she's worth a listen. Her blawg (tagline: an irreverent look at lawyers and technology) has previously appeared here, with her post on the Sea Sponge/ Sua Sponte spell check debacle, in Blawg Review #47. Check out the brand new Blawg Review #50, which poses the challenge "there aren't that many blawggers showing much interest in pitting the establishment clause against the free exercise clause."

Now, that's a fine statement for a rebuttal. I'll volunteer, if'n ain't nobody else gonna do it.

As tDGoR notes, most folks are in it for the one, or t'other. Either you're a natheist (sic) or a dominionist (wanting to extend God's law, in your preferred form, to rule over all of man's law); a Freedom For All To Worship As Conscience Dictates Wackadoodle, or a Tear Down This Wall of Separation Which H'ain't in the Constitutiom (sic) NoHow Christian Fundamentalist, probably in favor of criminalizing abortion and contraception and miscarriages. Well, surely there's some middle ground between good common sense on the one hand, and insanity on the other. And that's where we'll stand! Er. Um. Right, onwards.

Play in the joints - Scalia's fun dissent in Locke v. Davey, for example, ran like so:

A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead "play in the joints" when haled into court. If the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones.

Even if "play in the joints" were a valid legal principle,
surely it would apply only when it was a close call whether
complying with one of the Religion Clauses would violate
the other. But that is not the case here.

Scalia notes that the Court sometimes displayes a "refusal to apply any principle when faced with competing constitutional directives." True. Good point. Scalia, of course, is not my favorite for solving such competing commands, either for methodology (sometimes results-oriented) or his choice of results. Regardless.

Is there a great wide gap between the Est. Clause (shall make no law respecting...) and the Freedom of Expression clause? Funny thing, there; the word Religion appears once, meaning it's two clauses with one word involved, a single subject. "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;" And yet, the two have radically different meanings. An establishment of religion means more than just a state Church, as some would still vainly have it. And freedom of religion (meaning faith) is protected as freedom to exercise that faith. Not that the law always follows this text. And if it did, folks with a genuine religious belief that required illegal or dangerous or, well, asocial behaviors would be protected. Sticky wicket, that.

I was momentarily swayed in law school by the argument that insisting that science classes be taught without supernatural causes was a form of religion, impinging not only on certain religious students' freedom of expression (probably false) but actually falling afoul of the Establishment Clause (enshrining Darwinist-ism as a religion). I think I can state comfortably that this is false and silly. Studying science, with its intention of examining and making useful theories and predictions about the natural world, involves the use of natural science. Math, methodological naturalism, and reproducible testing of hypotheses. Not, you know, inspired revelation. Also, there's virtually no such thing as Darwinism, but rather the modern theory of evolution. Darwinism is what you call it when you want people to confuse it with Communism or botulism.

Locke v. Davey was itself one of those fun cases where free expression seemed to run right up against the state intentionally refraining from establishing - or endorsing - or indeed funding and aiding - religion. Scalia would say "Not Mandated!" but in this case, the state decided it would Not Give Scholarships For Religion. A discriminatory practice, perhaps, perhaps. But does it really prevent the Free Exercise of religion to not get state money to pursue a particular degree? The line drawn was a bit arbitrary - if Joshua Davey had majored in math and just happened to take the same kinds of classes, what result? - but I'm not convinced that Scalia's right about religion. Unsurprisingly. But a neat aspect of his opinion is that his anti-discrimination plea on behalf of the religious echoes his arguments in affirmative action cases. Symmetrical readings, no favoring nor disfavoring. I would call it pro-individual rights, except that I have seen some of Scalia's other opinions. So I think it's mostly about race and faith, rather than an abstract jurisprudence of rights.

More will, I'm sure, occur to me.