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thoughtsnips
Wednesday, February 25, 2004
 
LOCKE V. DAVEY

This was a very important case. I was intending to write my opinion on this, but never got around to doing it.

The majority opinion has some very, very important statements that are bound to be quoted in the future cases. The most important, in my opinion (I have to read this atleast two more times to grasp the full implications of it), are these: "It imposes neither criminal nor civil sanctions on any type of religious service or rite. It does not deny to ministers the right to participate in the political affairs of the community." and "But training for religious professions and training for secular professions are not fungible."

What Justice Rehnquist has done is, he has set a higher scrutiny when it comes to funding theological studies, as against funding other disciplines. It is surprising that James Madison's Memorial and Remonstrance was not quoted... but then, that would be very unlike Rehnquist :).

My opinion: In the case at hand, I would welcome the SC ruling. However, one thing I missed in the majority opinion is an explication of the distinction between studying general theology, which encompasses no specific religion, and the specific pastoral studies that Davey wanted to pursue. However, Justice Thomas has, in his dissent noted this difference, though he arrives at the opposite result.

Justice Rehnquist threw a big surprise by reversing his trend in supporting state's rights in Hibbs case last year, when he decided that Nevada could not claim sovereign immunity in that case. This case could be the equivalent surprise this year.

I love Scalia's dissents. Though they arise out of completely unacceptable (for me) premises, he makes very sharp points. I have reserved it for later.

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