MORE ADVENTURES IN JURISPRUDENTIAL SQUISHINESS

Read Garnett's article on Davey v. Locke, the case that the Supremes just agreed to hear, challenging the Washington State constitution's bar on state funding for religious instruction. Link via Volokh. As Garnett points out, if you frame the discussion in the way that the Rehnquist Court has done recently (in Mitchell v. Helms), then this is a case of the state discriminating in the distribution of aid based on religion, without a valid purpose, or at least one that the Court is going to recognize. And if you can add the history of anti-Catholic bigotry into the mix, as Garnett does, and tie the provisions to those beliefs, then you may have a winner.

So what? There are all sorts of other valid concerns, present in the case law and also present in the claims of founders such as Madison and Jefferson that can lead to the conclusion that state aid to religious organizations can be divisive and dangerous. Locke could also be brought into the mix. And these views in no way require anti-catholic bigotry, as Garnett indicates. They may merely indicate a deep respect for the depth of religious passions and a desire to avoid close connections between religion and politics. And the divisiveness of discussions over which religious groups should receive state benefits ("all of them" will not be a politically viable answer!) could lead to the same kind of hesitancy that gave birth to the Establishment Clause in the first place.

You might not find these arguments persuasive. But it's hard to really say, with complete certainty, that the arguments in favor of striking down Washington's law -- which would also entail a strong view of the Supreme Court's powers vis-a-vis the states -- clearly outweigh the arguments in favor of allowing Washington to keep the provisions and letting the good people of Washington figure out the correct course here. And it will undoubtedly be an act of discretion on the part of the Supreme Court however the case turns out. It's partly the job of legal commentators to minimize the appearance of that discretion. It's partly the job of political scientists to remind you that the legal commentators aren't telling the whole story, and that they cannot tell the whole story due to the constraints imposed by the internal norms of their profession.

[That's not an attack on legal commentators as such. Every profession has its own blindnesses. One of the current blindnesses of political science, paradoxically in my opinion, is a focus on methodological sophistication above political acumen. And the habitual reflection on power -- another trait of some political scientists -- can lead to other kinds of blindnesses as well. For legal commentators, the task really is to help -- sometimes half-consciously -- in the conversion of arguments from the rough-and-tumble of politics to the more rarified plane of "the legal." Often this entails slamming the cover down on the political motives that threaten to emerge at inappropriate moments; certain kinds of arguments are just not supposed to count, even if these arguments form the phenomenological basis for one's attachment to a particular course of action or a particular outcome.]