Just read the opinions in Locke v. Davey, which held that states may discriminate against religious programs in distributing generally available benefits, and I think Justice Scalia’s dissent is far more persuasive than the Chief Justice’s majority opinion. The one good thing I can say about the case is that the opinions are short enough that they’ll be less trouble than usual to excerpt in my 2004 casebook supplement.
I might have more about this case later (or I might not), but in the meantime one simple point: If the state of Washington decided to give special benefits for students of devotional theology (a $3000 scholarship only to people who are studying materials that are “devotional in nature or designed to induce religious faith”), that would be a sure violation of the Establishment Clause, because it would be discrimination in favor of religion. But when the state does the exact opposite, by specially excluding such students from a generally applicable program — when it discriminates against religion — that’s now (after Locke v. Davey) completely constitutional, even though the Establishment Clause itself has long been described as barring disapproval as well as endorsement of religion, inhibition as well as promotion of religion, hostility towards as well as favoritism towards religion.
The result, I think, genuinely is the discrimination against religion that people have complained about (sometimes wrongly, but here rightly) — not just exclusion of either pro-religion or anti-religion messages from the government’s own speech, but a regime where the government may discriminate against private religious institutions and programs, but may not discriminate in their favor. Now this is a wrong that is indeed worth amending the Constitution over.
For more, see Part E of this article.
UPDATE: Stephen Bainbridge has more on this case.
FURTHER UPDATE: I conveniently forgot how wrong my prediction in this case was (though at least I labeled it “tentative”).
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