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William C. Altreuter
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Sunday, February 29, 2004

Back in October at UB's Desmond Moot Court competition, the case being argued was Locke v. Davey. The judging was based on the advocacy skills demonstrated by the students, of course, rather than on the merits, but all of the judges I sat with had opinions about the merits, and guesses about how the Supremes were likely to come down on it. I really did not anticipate that seven of them would go along with the State of Washington, and, to be honest, even as I read the opinion I am not so sure I understand the distinction being drawn by Rehnquist. I mean, sure, there's a difference between the Establishment Clause and the Free Exercise Clause, and I understand that in Lukumi the Court was dealing with a statute that criminalized a particular religious practice, but I am missing how the fact that the state's disfavor of religion is "of a far milder kind" makes any difference. Don't get me wrong-- I am delighted with the result, but I am struggling to see how it fits with the other things the Court has said on the subject.

I wonder too about Justice Scalia's influence these days. Even though he has been spotted an extra vote, he seems to be finding himself in the minority more and more. He seems to be getting crazier and crazier, too. I cannot imagine that he expects anyone to believe that the Reverend Davey's loss of his scholarship will bring about the loss of Medicare benefits for the clergy (maybe he was reading "The Power and the Glory" on his last duck hunting trip). And I think it is hilarious that he finishes his rant by comparing the majority's decision to the French banning religious attire from the schools. It's such a talk radio style insult: "You are wrong! You are stupid! You are... you are French! Nahhh!" Sometimes you get the feeling that Scalia is going to work himself into a Rumplestiltskin style rage and stomp himself through the floor, you know?

Thomas's dissent is just an embarrassment. Anytime someone writes an essay or gives a speech that quotes the dictionary you just know that they've got nothin. He'd have done better to have simply said, "I vote with Nino. He always has good ideas."

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