The Court vs. Free Exercise

Today the Supreme Court issued its opinion (.pdf) in the case Locke v. Davey. You can read my summary of this case here. If you'd prefer, in a perfect world, the Court would have produced this opinion(word doc). (note: there's some repetition between the two, but mostly re the facts of the case).



The Court ruled that the State of Washington, and any state, may discriminate against theology majors in its otherwise neutral program. Actually, the court ruled that the program was neutral, though the explanation was quite weak.



More from the scholars section here and here.



Anyway, the Chief Justice's opinion is quite short (literally and on reasoning). The majority essentially argues that because neither the denial to theology majors nor the state constitutional provisions that allegedly require the denial exhibit hostility towards religion, and that in other ways the statute accomodates religious exercise, the statute does not produce a "presumption of unconstitutionality." Without this presumption, Davey's loses and the state is free to single out theology majors from its program.



Justice Scalia dissented and Justice Thomas joined. Here are some fo the highlights from the dissent:



When the State makes a public benefit generally avail-able, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax.



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The Court does not dispute that the Free Exercise Clause places some constraints on public benefits programs, but finds none here, based on a principle of "'play in the joints.'" Ante, at 4. I use the term "principle" loosely, for that is not so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives. There is nothing anomalous about constitutional commands that abut. 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 neutral-ity, we must enforce them, in hard cases as well as easy ones.



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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. It is not just that "the State could, consistent with the Federal Constitution, permit Promise Scholars to pursue a degree in devotional theology." Ante, at 5. The establishment question would not even be close, ….



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In an era when the Court is so quick to come to the aid of other disfavored groups, see, e.g., Romer v. Evans, 517 U. S. 620, 635 (1996), its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional.



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When the public’s freedom of con-science is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression. Having accepted the justification in this case, the Court is less well equipped to fend it off in the future.



Anyway, I can't say I'm that surprised. This Court has chosen to ignore basic liberties contained in the First Amendment (re campaign finance) and has held that the 14th Amendment's Equal Protection Clause doesn't prevent states from discriminating against whites, asians, and arabs in university admissions. Hopefully, someday more of the justices on the Court will read the constitution more carefully than the current bunch do.