Bagley & Strout

[Rick Garnett]

I had thought that the Maine cases, just like Jackson, etc., were about the
Establishment Clause question -- "does the EC require exclusion of
religious schools from a school voucher program"?  True, the plaintiffs
raised "affirmative" claims -- "the First Amendment requires inclusion" --
but the Maine court(s) explicitly held that the EC requires exclusion.

Given the clear split with Jackson, I wonder why the Court didn't take the
Maine case JUST on the EC question?  They would not necessarily have had to
reach the affirmative claims.

Is it is just a question of not knowing SOC's mind?

Rick Garnett

At 10:59 AM 10/13/99 -0500, you wrote:
>        Three thoughts:
>
>        Helms v. Mitchell is another intermediate little step they can
take before
>they have to deal with vouchers.  marty Lederman and presumably others view
>Helms as a bigger step, because it is direct aid.  The Court may view it
>that way too.  But I am inclined to think it is a smaller step, because it
>is so much less money.
>
>        The Maine cases are harder than the Arizona, Ohio, Wisconsin, and
when it
>gets there, Florida cases.  The Maine cases are about an obligation to fund
>religious schools; the others are about whether the state may fund if it
>chooses.  So any voucher case would be a smaller step than the Maine cases.
>
>        Everybody on both sides is afraid to grant cert in these cases until
>O'Connor tips her hand.  There are eight votes that don't want to grant
>cert and lose.  That increases the appeal of little steps.
>
>
>At 03:28 PM 10/12/1999 +0000, you wrote:
>>Cert. denied today, Oct. 12.  Thoughts?
>>
>>Michael Stokes Paulsen
>>University of Minnesota Law School
>>
>
>
>Douglas Laycock
>University of Texas Law School
>727 E. Dean Keeton St.
>Austin, TX  78705
>        512-232-1341 (phone)
>        512-471-6988 (fax)
>        dlaycock at mail.law.utexas.edu
>
Richard W. Garnett
Notre Dame Law School
Notre Dame, IN  46556
(219) 631-6981
garnett.4 at nd.edu