Wednesday, February 25, 2004

Look who dissented in the theology scholarships Supreme Court case. Shocking.

I'm not sure how this case got to the Supreme Court anyway. If Davey was able to continue his studies without the scholarship, then he pretty clearly wasn't denied expression of his religion, just denied a check for a specific application of that expression. Which is exactly what the majority opinion states:

The Court rejects Davey’s contention that, under Lukumi, supra, the program is presumptively unconstitutional because it is not facially neutral with respect to religion. To accept this claim would extend the Lukumi line of cases well beyond not only their facts but their reasoning. Here, the State’s disfavor of religion (if it can be called that) is of a far milder kind than in Lukumi, where the ordinance criminalized the ritualistic animal sacrifices of the Santeria religion. Washington’s program imposes neither criminal nor civil sanctions on any type of religious service or rite. It neither denies to ministers the right to participate in community political affairs, see McDaniel v. Paty, 435 U. S. 618, nor requires students to choose between their religious beliefs and receiving a government benefit, see, e.g., Hobbie v. Unemployment Appeals Comm’n of Fla., 480 U. S. 136. The State has merely chosen not to fund a distinct category of instruction.

That Scalia and Thomas could somehow come to another conclusion is prima facie evidence of their unfitness for the bench, if you ask me. Scalia, in fact, in his dissenting opinion, makes the state's own case:

There are any number of ways it could respect both its unusually sensitive concern for the conscience of its taxpayers and the Federal Free Exercise Clause. It could make the scholarships redeemable only at public universities (where it sets the curriculum), or only for select courses of study.

Coulda sworn that's what they'd done, Tony. But Scalia seems to be conflating 'expression of religion' with 'training for a job that has religious aspects'. His later hypothetical of denying prescription benefits to nuns (!) would only be applicable if the nuns were attempting to acquire the drugs to use as a sacrament.

Can't let his next sentence go though:

Either option would replace a program that facially discriminates against religion with one that just happens not to subsidize it.

"Just happens not to subsidize it?" In other words, it's OK to discriminate, just so long as you're not obvious about it... I mean seriously, this guy is a Supreme Court justice? "It's not that we discriminate against the negroes, Your Honor, we just happened not to hire any for the last decade." "Oh, well, that's just fine, just fine." Scalia then cites Brown v. Board of Education a few paragraphs later, just to make the hypocrisy more transparent.

Thomas, also, misses the forest for the trees.

I write separately to note that, in my view, the study of theology does not necessarily implicate religious devotion or faith. The contested statute denies Promise Scholarships to students who pursue “a degree in theology.” See Wash. Admin. Code §250–80–020(12)(g) (2003) (defining an “ ‘eligible student,’ ” in part, as one who “[i]s not pursuing a degree in theology”); Wash. Rev. Code Ann. §28B.10.814 (West 1997) (“No aid shall be awarded to any student who is pursuing a degree in theology”). But the statute itself does not define “theology.” And the usual definition of the term “theology” is not limited to devotional studies. “Theology” is defined as “[t]he study of the nature of God and religious truth” and the “rational inquiry into religious questions.”

In other words, according to Justice Thomas, studying theology is not necessarily an expression of religion, therefore denying scholarships to theology students is discrimination against religious expression.

I'm starting to wonder how these two got their driver's licenses, much less passed the bar.

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