DAHLIA LITHWICK IS WRONG, BUT LESS WRONG THAN YOU THINK

Dahlia Lithwick writes:

Of course chasing religion from the public square is hostile. The point is that it's the only means of avoiding a theocracy.

Eugene Volokh responds:

How is discriminating against religious participants in generally available programs "the only means of avoiding a theocracy"?

Stephen Bainbridge agrees and the Curmudgeonly Clerk feels vindicated. On the whole, the Clerk is right here, and I back off a bit from my earlier zeal in defending Lithwick (but not from the basic substance of that earlier post on Scalia).

But Lithwick's accuracy is not the most important issue here. Lithwick's argument is that "chasing religion from the public square" -- an action that she equates with "walling off church from state" -- is the only means of avoiding a theocracy. Lithwick is imprecise, but at least she's shooting in the right direction, in my view. Rather than simply referring to the danger of "theocracy," I would frame the basic thrust of the concerns of the "walling offers" as that of the social strife that results from fears of religious favoritism, which members of disfavored religions will argue is the functional equivalent of a theocracy anyway, just not their theocracy. Read the powerful dissents by Stevens, Souter and Breyer in Zellman v. Simmons-Harris. Professors Volokh and Bainbridge don't provide an argument that justifies discounting these fears. Sort of like the majority in Zellman, but that's another story.