Pop Quiz: Justice O'Connor and the Religion Clauses

Sat Jul 2 16:39:28 PDT 2005

Our posts may have just crossed, but just to reiterate, our point was
not that O'Connor was always wrong on the Establishment Clause, or that
we would never celebrate any of her EC decisions.  It was that her
decisions were hit-and-miss, especially under the EC, and that it's very
hard to come up with a principled way to explain (or predict) those
decisions.  And we don't view that problem to be limited to the
government religious expression cases.

You raise a good example in the distinction b/w Mitchell and Zelman.
Her direct / indirect aid distinction is based in part on endorsement
concerns (Mitchell at 842-43).  Even where the aid follows parental
choice by following the students to the school per capita, as in
Mitchell, if the check goes directly to the school, the money can't be
applied toward religious purposes, because it just looks worse to her
(and to Breyer).  But if the parents get a check that they can't use for
any purpose other than to endorse over to the school, as in Zelman, it
looks OK to her (but not to Breyer).

Yes, this distinction is administrable:  it should be relatively easy
for lower courts to tell whether the gov't aid check went to the
student's home first, or went directly to the school.  But her reason
for treating cases differently across that admittedly clean line is
still highly subjective and, in my view, difficult to defend.

-----Original Message-----
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Berg, Thomas C.
Sent: Saturday, July 02, 2005 3:22 PM
To: Law & Religion issues for Law Academics
Subject: RE: Pop Quiz: Justice O'Connor and the Religion Clauses

It's also the case that after some hemming and hawing (along with others
on the Court), O'Connor came down firmly on the side of allowing
religious schools in school choice programs.  She did still cast the key
vote to limit direct aid -- even when figured on a per-capita formula --
based on a rather thin "it looks worse" sort of argument (the very kind
of O'Connor argument that regularly frustrated a lot of us).
Nevertheless:  (1) her key vote for vouchers should be viewed as a great
contribution by those of us (including the Becket Fund) who see school
choice as most consistent with religious liberty; and (2) the line that
she drew between "true private choice" and direct aid is not all that
murky or subjective, and seems pretty administrable.

I think that condemning O'Connor for drawing unclear lines in religion
cases is an example of letting the emotional religious-symbols cases
dominate the analysis, as against what are (to my view) more important
areas for the substance of religious liberty.

Tom Berg

University of St. Thomas School of Law (Minnesota)

  _____  

From: Alan Brownstein [mailto:aebrownstein at ucdavis.edu]
Sent: Sat 7/2/2005 11:59 AM
To: Marty Lederman; Law & Religion issues for Law Academics
Subject: Re: Pop Quiz: Justice O'Connor and the Religion Clauses

I think Marci is right. O'Connor's position wasn't just technically 
different than the majority in Smith. She recognized the value of 
indeterminacy in this area. Even if the Supreme Court ruled against 
religious plaintiffs in many pre-Smith free exercise cases, the 
recognition that general laws and adminstrative decisions burdening free

exercise rights could be subject to judicial review forced political 
decision makers to think twice and opened the door to accommodations and

compromises. 

The Court in the Smith decision recognized that any meaningful
protection 
for free exercise rights against general laws would be imprecise and 
indeterminate in its application. So it choose clarity over liberty. I 
have always believed that was a serious error. So did O'Connor. I
thought 
the Becket Fund did too. 

There probably isn't a church-state scholar or lawyer in the country who

wasn't frustrated some of the time by O'Conner's subjectivity. But
unless 
the Becket Fund has changed its position on Smith and RFRA, its comment 
on SOC demonstrated poor judgement as well as bad taste. 

Perhaps this reflects my own lack of judgement, but I expected better of

you guys. 

Alan Brownstein 
UC Davis 

> 
> Marci writes that "while it is true that she has altered the = 
> Establishment Clause jurisprudence, she has not been in the majority
on 
= 
> the Free Exercise Clause since 1990 and Smith." 
> 
> That is, of course, nominally (or technically) correct.  But has SOC =

> really been that far from where the Court truly was on FEC questions?
= 
> See, e.g., her concurrence in Smith, and, especially, her opinion for
= 
> the Court in the answer to my Question No. 1. 
>   ----- Original Message -----=20 
>   From: Hamilton02 at aol.com=20 
>   To: religionlaw at lists.ucla.edu=20 
>   Sent: Saturday, July 02, 2005 11:53 AM 
>   Subject: Re: Pop Quiz: Justice O'Connor and the Religion Clauses 
> 
> 
>   I guess the Becket Fund won't be citing Justice O'Connor's backing
of 
= 
> strict scrutiny under the Free Exercise Clause in its future works?
I 
= 
> would have thought those who would attack her would have given her the
= 
> weekend to be lauded.  But I'm a former clerk and extremely fond of
her. 
> = 
> 
> 
>   With respect to her influence on the Religion Clauses-- while it is
= 
> true that she has altered the Establishment Clause jurisprudence, she
= 
> has not been in the majority on the Free Exercise Clause since 1990
and 
= 
> Smith. 
> 
> 
> 
>   Marci 
> 
> 

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