Justice Gorsuch (drawing by Josh Duncan)
Perhaps to entice two extra votes, Chief Justice Roberts narrowly views this case as one involving religious status not religious use of the funds. Remember fn 3: “This case involves express discrimination based on religious identity with respect to playground resurfacing. We do not address religious uses of funding or other forms of discrimination.”
In his concurring opinion (not included in your edited linked version of the case), Justice Gorsuch responded as follows:
"First, the Court leaves open the possibility a useful distinction might be drawn between laws that discriminate on the basis of religious status and religious use. Respectfully, I harbor doubts about the stability of such a line. Does a religious man say grace before dinner? Or does a man begin his meal in a religious manner? Is it a religious group that built the playground? Or did a group build the playground so it might be used to advance a religious mission? The distinction blurs in much the same way the line between acts and omissions can blur when stared at too long, leaving us to ask (for example) whether the man who drowns by awaiting the incoming tide does so by act (coming upon the sea) or omission (allowing the sea to come upon him). Often enough the same facts can be described both ways."
Neither do I see why the First Amendment’s Free Exercise Clause should care. After all, that Clause guarantees the free exercise of religion, not just the right to inward belief (or status). I don’t see why it should matter whether we describe that benefit, say, as closed to Lutherans (status) or closed to people who do Lutheran things (use). It is free exercise either way.
I, of course, agree with Justice Gorsuch. But what are your thoughts?
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