Yesterday's House episode ("House v. God") dealt with a teenage faith healer. The episode, which was not that good, ended in a tie (3 all) though Dr. House suggested the tie went to the mortal. [Talking about mortal, Kansas has a death penalty law where the tie apparently goes to the state.] The disease did fit into our recent discussion.* The episode also provides another bridge -- religious freedom is a chapter in the Price of Liberty book that I recently purchased.** And, of course, religious matters has been dealt with a few times already in the last few days.
The chapter gave me another case to look at the Everson case, the landmark in federal establishment law in the recent era ... Justice Black's glorious opportunity to spell the strict contours of the separation of church and state while ending up saying that it was not violated here. Justice Jackson thus compared the opinion to a poem about a woman who protested strongly, but ultimately consented ... a case of the lady doth protesting too much. In fact, the opinion was 5-4, the two dissents only disputing that the Court should have been more separatist. Compare this to current days where a 5-4 ruling is likely to turn on whether Justice Kennedy thinks separation is required at all.
The decision itself turned on bus fares. Forty years later, New York City supplied buses and bus fares to parochial students (the case arose from New Jersey). Along with the released time case a few years later (children released for a period for religious instruction, the remainder staying behind), the opinion held up, even before the recent school voucher case loosened up the rules a bit more. [Justice Alito wrote a student note on the released time cases.] The majority in Everson argued that this was a "child benefit," which is how vouchers (at least those supplied to the parents themselves) are sometimes defended. But, the neutrality of the specific benefit helped -- twenty years later, for instance, Justice Black dissented in a case involving books.
The minority here took a stricter line -- the government was supplying "support" to religious education by supplying funds to deliver students to religious schools. This was not akin to fire protection and the like, which covers all. The funds are targeted to religious institutions in particular with the clear intent to "support" them. Consider: surely, a state cannot fund a church, and bringing up garbage collection from it will not change the principle. On some level, this seems a bit to formalistic, but ultimately -- Justice Jackson underlined this in his separate opinion -- the case turned out to be easier than one might think.
The government favored parochial (or "religious," if "parochial" is deemed too narrow or demeaning in some sense) schools in particular, which also sometimes is clearly seen in voucher programs. The locality here did not just supply all students with free bus fare. A person going to public or even private school might still have to pay for transportation, which was not the policy in New York City in the 1980s. The township here took special concern for the costs to parochial schools, which put Justice Rutledge's dissent on sounder ground. He even noted in a footnote that a truly neutral subsidy to all students ... not a law targeted to religious schools alone ... would raise different questions.
More evidence that sometimes the narrow reason is the way to go. Sometimes, religious jurisprudence is ridiculed for the narrow and confusing line drawing involved though ultimately many areas of law turn on such nice questions for which centrist jurists reject clear lines. Thus, justices like Breyer and Ginsburg turn out to be less liberal and Kennedy less conservative than some might think. But, this is really how normal people decide questions -- lots of shades of gray with an ability to agree upon such matters, if they are not expressed too broadly. Meanwhile, people on both sides -- if given their druthers -- would decide things on a broader basis.
I see this a lot on message boards. I find attacking the middle ground sometimes is more useful, being able to "win" even on the other side's own ground. You know the "accepting for the purpose's of this case" approach. It also is a useful technique in that it sort of follows the "walk a mile in a person's moccasins" theme. View things through their lens, but still manage to get your point across. This might be hard if the other person seems deeply wrong in your judgment, but we do tend to have some common ground. We are all humans after all.
One need not point out that mixture of church and state tends by its very nature favors certain churches. Just point out that in this specific case, this turns out to be true. Do this over and over again ... raising the possibility that maybe there is some neutral area of legitimacy. The opening left will probably lead to some backtracking ... just as leaving the death penalty open even with a lot of barriers will lead to error ... but strict separation simply will not be accepted anyway. So, you attack the core problems the best way you can. And, yeah, now and again, raise the broad concerns.
But, most of the time, you will be attacking the more mundane. Life only tosses the truly profound matters in their purist sense at us a relatively few times. Thank goodness for that.
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* Likewise, the NY Daily News recently referenced a television program about a 20 something couple that had an unscheduled addition to the family. The woman, you see, has a policy against using birth control. This "policy" is known as "stupidity." She noted that her policy tends to lead the guy to be more careful ... this would include not going out with such a person in the first place.
** The chapter on privacy is what first attracted me to the book -- it's by Harriet Pipel, who was a major player in the contraceptive and abortion rights movements. It turns out that she only briefly discusses this specific area (admittedly in its infancy at the time), spending about a third of the chapter on limits on press freedoms (in particular, respecting "public figures," a matter just being addressed by the Supremes when she wrote the piece). The ability of individuals to protect their reputations, even if First Amendment freedoms are at stake, underlines that "privacy" overall is deemed an important personal right that the government has clear obligations to secure.
Pipel also notes the reduced privacy rights of those on public assistance and suggests eavesdropping of the home per se might be considered illegitimate. I'm not sure if this can be absolutely true. Likewise, she discusses the obligations of the government to protect us even from private violations of privacy -- consider the recent law restricting direct marketing calls. Interesting chapter, again underlining my earlier comment that the book's lessons hold true over thirty five years later. For instance, without calling it such, data mining is addressed.