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Scalia, as usual, is direct in his dissent. "Let there be no doubt: This case is about discrimination against a religious minority," he wrote. "In an era when the court is so quick to come to the aid of other disfavored groups, its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional."

Here's why it's discrimination, in Scalia's words: "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."

And now, get ready for more such "special taxes" on religion. Almost certainly this case is a huge blow for the school choice movement in its efforts to have vouchers available to students who want to attend religious schools. In 2002, the Supreme Court ruled that students in Ohio could attend parochial schools under a state voucher program, but voucher opponents won't be able to apply that decision in the states that have Blaine amendments.

Likewise, this case can have implications for Bush's faith-based initiative and similar measures in states around the country. The court didn't say that religious organizations must be denied government funds (that much, at least for now, the Supreme Court has said is unconstitutional), but now the court is saying that religious organizations can be denied public money.

"We are very disappointed with a decision that clearly sanctions religious discrimination," American Center for Law and Justice chief counsel Jay Sekulow, who argued the case, said in a press release. "It is troubling that the decision is irreconcilable with more than a half century of Supreme Court precedent regarding the free exercise of religion."

Eugene Volokh, everyone's favorite law blogger, agrees. "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," he wrote. "Now this is a wrong that is indeed worth amending the Constitution over."

This is a huge decision—an earthquake for church-state relations, so expect more commentary in the days to come. In the meantime, keep your eyes on the First Amendment Center, which has some great background information on Locke v. Davey and other related cases.

Passionate?
Weblog thought about spinning off a comprehensive Passion blog, but there's simply too many articles out there on this film to wade through. Every news outlet is covering this story from several different angles—or, more accurately, the same four or five angles. Weblog has stopped linking to most of the local reaction stories ("Pastor Bill Smith of First Baptist loves it and wants to use it for evangelism. Rabbi Joe Steinberg is concerned about its portrayal of Jews"). Still, that leaves dozens upon dozens of stories still worth noting.

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February (Web-only) 2004, Vol. 48