Thursday, June 06, 2002

School Choice. Eugene Volokh very graciously gives his prediction in the Zelman case. I do hope he's right on the prevailing party.

We disagree, slightly, on the ordering of the Justices. I see his point regarding Ginsburg and confess that my prediction is based more on an unfounded hope. He looks at her dissent in Capitol Square Review & Advisory Bd. v. Pinette. This was the case where Ohio law had set aside the Capitol Square as a public forum, the KKK filed an application to place an unattended cross in the Square during the Christmas season. In this case, the Court (Scalia writing the main opinion) Souter and O'Connor concurred, Stevens and Ginsburg dissented.

My hope is that Ginsburg will not see this primarily an Establishment Clause case, but rather one of choice in using public (or government) benefits. This was why I mentioned the Witters case awhile back. In that one, Mr. Witters, a blind man, wanted to use state funds awarded to the blind to pursue education to go to seminary. There, the state of Washington rejected his request saying this was too close to crossing the line of establishment of religion. The Supreme Court unanimously rejected this concern, with Justice Marshall writing for the Court. I confess that my hope on Zelman is that it will follow the Witters precedent and find that this is not a grant of government funds or benefits to religion, but a grant to parents, who may choose it for religious or non-religious schools.

A week or two ago, when I started harping on this, I quoted Eugene's law review article: “government doesn’t necessarily endorse private choices that people make with government funds, any more than it endorses cabbage by letting people use food stamps to buy the food of their choice, which may include cabbage.” [Equal Treatment Is Not Establishment in 13 Notre Dame J. L. Ethics & Pub. Policy 341, 357-358 (1999).] To extend his analogy slightly, it doesn't necessarily endorse Judiasm if the person uses food stamps to buy kosher products.

Now, having just written that last line, I don't want to seem like I'm trivializing Judaism and reducing it to Hebrew National Wieners. That is not my intent.

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