Grotesque Anatomy
Thursday, December 04, 2003
  Supreme Speciousness
As I've mentioned before, I love reading Dahlia Lithwick's legal commentaries over on Slate.  But often reading her pieces depresses me:  Assuming she's reproducing their arguments accurately, I'm amazed at how poorly Supreme Court Justices reason.  To be fair, it's mainly Scalia that comes across as logic-impaired.  I don't know if that's because he talks more than the others, says more stupid things, or because Lithwick singles him out.  Whatever the case, I'm dumbfounded that arguments like this pass as "reasoning" in the highest court in the land :
Scalia argues that if the state can constitutionally discriminate against all religious study, it could constitutionally discriminate only against, say, Jewish studies.
Uh, no.  If the state can constitutionally discriminate against all religious study, it does not follow that the state could then constitutionally discriminate against one particular form of religious study.  In the first case, all religions are being treated equally--they're all prohibited from receiving government funding.  In the second case, one particular religion is singled out.

As for the larger issue in this case--Do government policies that ostensibly honor the constitutional requirement of not establishing religion (by refusing to fund it with taxpayers' money) evince an unconstitutional hostility toward religious free expression?, as Lithwick puts it--I don't see how denying government funding impinges upon religious free expression.  The Constitution only states that "Congress shall make no law...prohibiting the free exercise" of religion; it says nothing about providing tax monies to make it easier for believers to practice their religion(s).  There's a difference between not supporting something and restricting it:  Just because I don't donate to a cause doesn't mean I want to restrict it, or even that I disagree with it.  If states did provide funding for religious programs, they would then run afoul of the other horn of Church-State separation:  "Congress shall make no law respecting an establishment of religion."  People should be free to express their religious beliefs, but they can't expect the government to subsidize their faith.
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