Saturday, February 26, 2005


To Ed Brayton and Timothy Sandefur for their nice discussion on my post about incorporating the disestablishment principle.

Now Brayton always seemed to accept incorporation of the disestablishment norm, but I'm happily taken aback that my argument seems to be convincing Sandefur, who previously was skeptical of the notion that the 14th Amendment, properly understood, requires states to do anything beyond respect the religious liberty of the Free Exercise Clause. This is especially relevant given that Sandefur co-wrote a brief, submitted to the Supreme Court in the Zelman case, upon which Justice Thomas partially relied in his opinion while making that exact point, that only the religious liberty of the Free-Exercise Clause is properly incorporated.

Now if I could just so convince Justice Thomas....

No comments: