Bagley & Strout
Rick.Garnett.4 at ND.EDU
Wed Oct 13 12:39:38 PDT 1999
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?
At 10:59 AM 10/13/99 -0500, you wrote:
> Three thoughts:
> Helms v. Mitchell is another intermediate little step they can
>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
>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
>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
garnett.4 at nd.edu
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