What motivated the Court in Locke v. Davey? I said two posts ago that the Court's opinion today did not reveal the real pressure that I think led the Court to reject a clear rule barring discriminating based on religion. Here's the truly revealing passage in the oral argument. Questioning Solicitor General Ted Olson, Justice Breyer asked:

What is your response to the following concern that's been brought up a few times but I'd like you to address it directly. This case is perhaps a small matter of a distinction that doesn't make all that much sense, but makes some. But the implications of this case are breathtaking, that it would mean if your side wins, that every program, not just educational programs, but nursing programs, hospital programs, social welfare programs, contracting programs throughout the governments would go over, you'd have to go over each of them and there'd be a claim in each instance that they cannot be purely secular, that they must fund all religions who want to do the same thing, and that those religions, by the way, though it may be an excellent principle, may get into fights with each other about billions and billions of dollars, so -- which is something about which I have written about, which you know. All right. So, I'd like you to address that.

Olson's answer was insufficient. All it did was emphasize the Court was only being asked to take the next step on the path of precedent. Breyer burst back in, asking if Olson's position would commit the Court to deciding that a school voucher program not only may include religious schools (as the Court decided two years ago) but must include them. Olson could only flounder about the possibility of coming up with some sort of distinction and try to scramble back to the humble topic of one college student's scholarship. Breyer broke in again:

What are the practical implications? ... Just want a sentence on the practical implication. Is it as far-reaching as my tone of voice suggested?