esegall at gsu.edu
Mon Nov 29 08:35:13 PST 2004
It's not that I disagree with her decisions. It is that she does not
faithfully apply her tests (her strict scrutiny is sometimes strict
sometimes not, her rational basis test is sometimes quite deferential,
sometimes not.) The endorsement test can lead to any result in any case.
My main point is that her decisions exhibit a great lack of
transparency, and that is very troubling when she is the deciding vote,
not that she is either right or wrong.
>>> <Hamilton02 at aol.com> 11/29/2004 10:28:24 AM >>>
Life is too short for me to defend every decision by Justice O'Connor
with which some have disagreement (which is inevitable, as jabs will
come in from all sides), but I will say in my area of concentration,
that I heartily disagree that she has been either incoherent or a de
minimis contributor to the doctrine. I think the endorsement test is a
brilliant move to ensure the separation of church and state in a country
of increasing religious pluralism. It is not enough to ask about
benefit, which is a crude tool at best to assess the balance of power
between church and state. Rather, where the government stands behind a
message with religious content, there should be close judicial
attention. She is refining the tools, and indeed, saving the
Establishment Clause in the face of the pressure to reduce its scope to
overtly and obvious preference for religion.
. And the fact that one does not agree with her assessment of
government interest in Smith, Lyng, and other cases, hardly says that
she is not applying the test. There are two schools of thought on the
compelling interest test, one that heavily weights it in favor of the
believer by treating virtually every government interest as de minimis
(Brennan, et al) and one that gives more bite to the government's
concerns (O'Connnor). Indeed, I find it hard to believe that anyone is
going to take her on in Smith, where she said that the government has a
compelling interest in enforcing the drug laws. That seems rather
self-evident to me.
her completely unusable endorsement test for establishment clause
cases, her paying lip service in Smith to a free exercise clause test
she doesn't really apply,
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