REVERSING THE SLOPE OF THE SLIP:

Just Case, Bad Trend (E.J. Dionne, Washington Post, 12/4/2003)

We would all be better off if the state of Washington had given Joshua Davey his state scholarship to study theology at an evangelical college.

Because Davey was denied his scholarship, he sued. Because Davey sued, the U.S. Supreme Court may be forced to make a ruling that unsettles more than it settles in our national argument about religious liberty....

The Supreme Court ruled last year that the Constitution does not forbid state aid to religious schools through vouchers. But the various state Blaine amendments almost certainly forbid such assistance. The court could use Davey's case to overturn all the Blaine amendments and establish, in effect, a right for all Americans to get government help to attend religious schools.

Justice Stephen G. Breyer was not exaggerating on Tuesday when he said: "The implications of this case are breathtaking."

And that's why I wish this case had never arisen. I dislike the Blaine amendments because of their roots in anti-Catholic bigotry. But it seems strange that so many conservatives who revere states' rights would, on this issue, use a federal court to overturn them. If vouchers are to be the order of the day, shouldn't voucher advocates win their battles state by state? And should those who strongly oppose the Supreme Court's overturning of the states' authority to pass laws on abortion in Roe v. Wade turn around and use the same court to impose their view on vouchers?

E.J. Dionne's opinion as to where this case may lead seems to me quite exaggerated: no "right" to government help will come out of the case, no voucher programs will be forced upon the states because of this case, and the case implicates religious liberty only indirectly. It's really an equal protection case, one of a long train of cases deriving from Brown v. Board of Education. If the free exercise clause of the First Amendment is invoked, it will be because of the application of a principle of nondiscrimination, as with the free speech clause in Rosenberger v Univ of Virginia. Davey is asking the court to declare a person's religious faith, like his skin color, an inappropriate basis for discrimination by the law.

Conservatives are not being inconsistent to urge the court to apply its "constitutional law" consistently. One can debate whether equal protection and nondiscrimination should be enforced as forcibly as the Court has; but having adopted an expansive approach, the court should apply it consistently, not expansively when this is to the benefit of liberals and narrowly when an expansive approach would benefit conservatives.

What's interesting to me about Dionne's complaint, though, is that it used to be conservatives who feared where small cases might lead; now liberals are starting to fear a slide down a slippery slope. Conservatives may be doing better in the ideological war than we realize.

Posted by Paul Jaminet at December 4, 2003 10:47 PM