Bagley & Strout
treene at BECKETFUND.ORG
Wed Oct 13 13:50:51 PDT 1999
I agree with Marty's observations. I note, however, that the Court was
willing to take up the "may" and "must" issues at the same time in Pinette and
Rosenberger. This probably has something to do with the fact that viewpoint
discrimination is a well-developed doctrine, whereas free
exercise-discrimination cases and religious equal protection cases are few and
far between, and therefore the "must" issue independently was as great a task
to resolve as the "may" issue they would have had to get through first.
Not to mention the fact that the vouchers are, well, huge, while the access of
religious speakers to public fora in the early '90s probably wasn't looming
large in the minds of most people. Imagine, for example, if the Court had
accepted in place of Roe v. Wade a case where a woman was demanding that
Medicaid pay for an abortion.
Marty Lederman wrote:
> Re: the cert. denial in Bagley and Strout. Not very surprising. The
> Justices have been reluctant (see, e.g., Jackson) to decide whether states
> *may* provide vouchers for religious schools; until they do, I can't see a
> cert. grant in a case concerning whether states *must* provide vouchers for
> such schools. And anyway, they have plenty on their hands with Mitchell v.
> Helms, the outcome (and rationale) of which may bear significantly on the
> voucher cases.
> Marty Lederman
> (in my personal capacity)
Eric W. Treene
The Becket Fund for Religious Liberty
2000 Pennsylvania Av., N.W.
Washington, D.C. 20006
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