Drift of the Court on religion

[hamilton02 at aol.com]

The comparative issues are even more complicated than previously suggested.  I don't think there is a european approach to separation.  In this arena, each country abides by disestablishment to different degrees.  Compare France to Germany to Britain.  To the extent that Justice Scalia is comparing the US to a monolithic European approach, there is a fundamental flaw in his reasoning.

Marci

Marci Hamilton
Visiting Professor of Public Affairs
Princeton University
Sent from my Verizon Wireless BlackBerry

-----Original Message-----
From: "Marc Stern" <mstern at ajcongress.org>

Date: Tue, 3 Jun 2008 13:41:16 
To:"Law & Religion issues for Law Academics" <religionlaw at lists.ucla.edu>
Subject: RE: Drift of the Court on religion


But based on those subsidies, the UK has forbidden religious schools receiving government aid to tell students  that homosexual behavior is sinful (although they can teach that the church is opposed to homosexual behavior). And under its laws regarding sexual orientation equality, it has forbidden a Catholic school to fire a headmaster (a lovely English term)  who had a same sex partner. Moreover, the British have at least proposed that religious schools be required to accept a portion of students of differ faiths to avoid religious segregation.( I don't know off hand whether the proposal was adopted.)Thus, the question of whether the religious subsidies advance religious freedom is more complicated than Alan's post suggests-even before we get to the questioned of whether the nominal Christianity of  public schools in England is itself any boon to religion. 
Marc Stern 
 
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From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brownstein, Alan
Sent: Tuesday, June 03, 2008 1:35 PM
To: Law & Religion issues for Law Academics
Subject: RE: Drift of the Court on religion

 
 
 
Sorry, Eugene. I can’t help you on the question you asked about Justice White. But on the question of whether Justice Scalia’s arguments about the Establishment clause are sound, I am somewhat perplexed by his apparent belief that Europe is committed to the separation of church and state and that religious expression is excluded from the public square throughout the continent. I’m not an expert on comparative law – but, to cite just one example,  it certainly seems to me that European countries are far more likely to permit government subsidies of religious schools and far more willing to permit religious teaching and prayer in the public schools than the United States. 
  
Alan Brownstein 
  
 
 
From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, June 03, 2008 10:18 AM
To: Law & Religion issues for Law Academics
Subject: Drift of the Court on religion 
  
    I'm sure Justice Scalia is not credible to lots of people, just as any Justice is not credible to lots of people.  But I take it the question should be whether his arguments about the Establishment Clause -- the question he seemed to be discussing -- are sound, a matter that is logically quite independent of whether one thinks his (and Justice Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the Free Exercise Clause was sound. 
  
    Incidentally, speaking of the drift of the Court on religion -- has anyone studied why Justice White provided the fifth vote for the Smith majority?  He did originally vote with Harlan in dissent in Sherbert v. Verner, but then seemed to accept the constitutionally compelled exemptions regime -- not joining, for instance, Rehnquist's and Stevens' expressions of skepticism on the subject -- and in Bowen v. Roy took the most pro-claimant view of any Justice.  Yet in Smith he changed his view.  Any thoughts on why he so concluded?  Was he, for instance, persuaded by his thirty years of experience dealing with the constitutionally compelled exemptions regime that Scalia's critique was correct?  Or did he always take the view that the regime was unsound and should be jettisoned at the first opportunity, but that while it continued it should be enforced relatively rigorously? 
    
    Eugene 
  
 
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From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brad & Linda
Sent: Tuesday, June 03, 2008 5:57 AM
To: Law & Religion issues for Law Academics
Subject: Re: Scalia Decreis Drift of Court On Religion 
 
I'm not sure the author of the majority opinion in Employment Division V Smith is the most credible voice to criticize the Court's handling of religion. 
 
  
 
Brad Pardee 
 
----- Original Message ----- 
 
From: Joel Sogol <mailto:jlsatty at wwisp.com>  
 
To: Religionlaw <mailto:religionlaw at lists.ucla.edu>  
 
Sent: Monday, June 02, 2008 6:44 PM 
 
Subject: Scalia Decreis Drift of Court On Religion 
 
  
Scalia 
    Decries Drift of Court On Religion - June 2, 2008 - The New York Sun <http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion/79084/>  
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