Thursday, August 19, 2004

More Dahlia
I'm driving to Ohio tomorrow, so I am not sure how much I'll be able to post (maybe one of my cobloggers will put something up?), but in the meantime, I have another email from [name deleted]. Enjoy!

Here's more of the DL [Dahlia Lithwick] on DL.

I assume that Dahlia's Bill Pryor animus is rooted in her suspicion that once on the federal bench he'll hear the voice of God saying that Roe was decided incorrectly, i.e., that Pryor is a wild-eyed fundamentalist Christian bent on turning the 11th circuit into the Spanish Inquisition and making mincemeat of the civil rights of women, minorities and other Democrat core constituencies. For sure, Dahlia doesn't much care for fundamentalist Christians or, for that matter, religious people in general:

Quoth Lithwick, again using the Jeffersonian wall metaphor:
"There is a doctrinal tension built into the long tradition of walling off church from state, and also in the claim that this wall evinces no hostility toward the church. Of course chasing religion from the public square is hostile. The point is that it's [presumably the act of chasing]
the only means of avoiding a theocracy."
In case the phone rang while you were reading that, or you were thinking about what's for dinner and didn't catch it, again, please:

"...Of course chasing religion from the public square is hostile. The point is that it's the only means of avoiding a theocracy."
Why, "Of course"! THE LYNCH MOB IS JUST CONSTITUTIONAL LAW BY OTHER MEANS. OK: Just let that sink in for a sec. In the hearts of these religious zealots lurks a danger to society so imminent that they represent the one group to be singled out and silenced (or worse) by "chasing" them out of the public square.

Dahlia's enflamed secularism was no doubt partially satiated by Rehnquist's majority opinion last term in Locke v. Davey, a decision which protects a state public benefits program that facially discriminates against religion. (What's next, taking professional clergy off the Medicare roles?) Davey, winner of a Wash. scholarship was barred from using state monies in pursuit of a double major in "pastoral ministries and business management" at a private institution. Justice Scalia sums up the substance of the ruling:

"When the State makes a public benefit generally available, that benefit becomes part of the baseline against which burdens on religion are measured; and when the State withholds that benefit from some individuals solely on the basis of religion, it violates the Free Exercise Clause no less than if it had imposed a special tax." (Locke v. Davey, Scalia J. in dissent 540 US __ (2004)).
Con Law 101: laws which place burdens on religion, like ones that encumber race, are subject to strict scrutiny. (Church of Lukumi Babalu Aye Inc. v. Hialeah 508 US 520 (1993)), i.e., prinicple at work here is FORMAL NEUTRALITY OF TREATMENT. DL prefers hostile chasing.

And this EP summation by Justice Blackmun (indeed not a right-wing zealot):

"[w]hen a law discriminates against religion as such, automatically will fail strict scrutiny." (Lukumi at 579).
Now, I don't think Dahlia REALLY meant what she, as is often the case, carelessly (here, wrecklessly, I think) communicates in her column. But how to get around this inattention to phraseology?

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