Drift of the Court on religion

Tue Jun 3 11:02:58 PDT 2008

A bit off the main topic, but in reference to Marc's comment about the term
"headmaster," Boston high schools (though, curiously, not elementary or
middle schools) use the term. A teacher is a "master"--and both expressions,
for obvious reasons, are employed for teachers and principals of either sex.

Scalia may of course have been thinking about places like Turkey or
controversies like the headscarf ban in France, but on the whole I think
Marc's observations about the bad deal for both church and state that is
made when subsidies and establishments are sought. None of that, however,
addresses Scalia's main point about just what "establishment" ought to mean.

On Tue, Jun 3, 2008 at 1:41 PM, Marc Stern <mstern at ajcongress.org> wrote:

>  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
>  ------------------------------
>  *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
>
>
>  ------------------------------
>
> *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 <jlsatty at wwisp.com>
>
> *To:* Religionlaw <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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-- 
Vance R. Koven
Boston, MA USA
vrkoven at world.std.com
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