Rules of the Game: The "Play in the Joints" between the Religion Clauses


Locke v. Davey is an exemplar of the new generation of Establishment clause cases that, particularly in Zelman v. Simmons-Harris, have written into law a safe harbor, private choice, for governmental benefits that find their way into the coffers of religious institutions in amounts that are neither incidental nor trivial. In Locke the options presented in the private choice arguably infringed upon Free Exercise rights-- the dilemma that gives rise to the title of this article. Over the vigorous dissent of Justice Scalia, the Locke Court’s analysis of the permissibility of the conditioned benefit was based upon the argument that the government’s greater power to create a benefit subsumes the lesser power to condition the benefit. Justice Scalia would have applied a different test to the conditioned benefit, but I will argue that, under either test, the analysis of the conditioned benefit must be modified to take into account the presumptions that are incorporated in the “private choice” safe harbor and that these presumptions “tighten up” the “play in the joints.”


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Date of this Version

November 2004