The Court does not dispute that the Free Exercise Clause places some constraints on public benefits programs, but finds none here, based on a principle of “ ‘play in the joints.’ ” I use the term “principle” loosely, for that is not so much a legal principle as a refusal to apply any principle when faced with competing constitutional directives. There is nothing anomalous about constitutional commands that abut. A municipality hiring public contractors may not discriminate against blacks or in favor of them; it cannot discriminate a little bit each way and then plead “play in the joints” when haled into court. If the Religion Clauses demand neutrality, we must enforce them, in hard cases as well as easy ones.The reference to race discrimination is telling: Justice Scalia rejects affirmative action. The flexible approach to rights, for him, is just unprincipled. He had been pushing for a pure neutrality resolution of the longterm conflict between the two Religion Clauses. Why not just say government may not favor or disfavor religion? That would be a crisp solution, for sure.
In my Religion and the Constitution class, I often say, "Neutrality is the argument to beat." Neutrality is a great, comprehensible, clear, principled resolution. What motivates the Court to choose anything other than neutrality here? Perhaps the Court is wrong to think it has found a better answer than neutrality, but I would note that since it is difficult to beat the neutrality argument, when the Court goes for an alternate approach, it found a very compelling reason to do so. I don't know that the Chief Justice's opinion reveals the true motivations for deciding the case this way. I think better information is available in the briefs and in the oral arguments. The Court was concerned about what it would mean, not just in this case, but in many other settings, if it deprived government of the power to treat religion differently.
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