a citizen’s journal by Thomas Nephew

Locke v. Davey, contd.

Posted by Thomas Nephew on May 22nd, 2003

More commentary around the web about the scheduled Locke v. Davey Supreme Court case I mentioned on Monday. (The names get reversed because now the state of Washington is seeking a reversal; something like that.) Via a link in a second brief Volokh post, I learned that law professor Richard Garnett, writing for the National Review, agrees with Volokh and asserts that the Washington law is vestigial anti-Catholicism. Yikes! Tellingly, Garnett (and by his account the 9th Circuit Court) frames the discussion this way:

“…Washington’s apparent desire to regulate citizens’ religious choices, in ways not required by the Establishment Clause, provide[s] no warrant for that state’s laws that single out Joshua Davey’s educational choices for special disapproval. (emphasis added)

It isn’t Joshua Davey’s choices that are being regulated, it’s Washington state taxpayer monies. Josh can still go get himself educated.

On this point, compare, say, Aziz Poonawalla’s attitude about a Florida Muslim woman’s rights to wear a head-scarf at all times or obtain a driver’s license in that state, and note that no one was asking Joshua Davey to seek a scholarship, change his chosen course of study, or modify his religious convictions. It would be interesting to get Professor Garnett’s views on the Florida situation.

Political science professor Brett Marston, on the other hand, seems to have views similar to mine, and limns the differences between legal commentary and political commentary:

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. […]

It’s partly the job of legal commentators to minimize the appearance of [the Supreme Court’s] 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.

Finally, the litigants’ arguments for and against the appeal to the Supreme Court can be found here (State of Washington) and here (Joshua Davey), links again courtesy of Eugene Volokh and correspondents.

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