Friday, February 27, 2004
Follow-up: Ramesh Ponnuru seems to think that it would take a "pretty flinty old-school conservative" not to support Scalia's dissent. But he assumes that the only reason to reject the dissent would be that one rejected incorporation. But I accept the idea of incorporation. I just don't accept the idea that the core idea of the First Amendment's religious freedom provisions is anti-discrimination. I think that freedom of religion isn't about equality; I think it's about, you know, freedom. I think that's a much more basic reason to oppose Scalia's view than quibbles about incorporationism.
Be that as it may, what makes Ponnuru think that giving the states less lattitude in how they structure school vouchers - and that's what Scalia's position is - would encourage them to adopt such plans? If states knew that any voucher plan that was not open to all religious schools would be struck down, then wouldn't there be more opposition to vouchers? Folks worried, for example, about funding Islamic fundamentalist schools would be more likely to join the opposition to vouchers if they thought their state would have no lattitude to exclude such schools from voucher plans.
Washington State wrote their scholarship law in an attempt to comply with what they thought was settled Establishment Clause jurisprudence. Now they've discovered that what they thought was required to comply with the Establishment Clause is, according to Scalia, forbidden because it transgresses the Free Exercise clause; indeed, Scalia would argue that what they thought was forbidden is in fact mandatory.
I thought the joke about what is not forbidden is compulsory was a joke we told about the other guys, not one they told about us.