Legal Commentary

I've been away, for the past few days -- crashing Princeton's Reunion and participating in the annual Law and Public Affairs reunion conference (on "Law and Religion") -- and so have missed the conversation on civility, slippery slopes, and the like.  In any event -- and I hope this is not too awkward or clunky a segue -- I was struck, at the conference, by the proximity-to-consensus revealed at the conference, among a wide range of engaged law-and-religion scholars, on the proposition that the Constitution's no-establishment rule need not, and should not, be understood to prohibit using public funds to pay the tuition of students attending qualifying religious schools.  The "Memorial and Remonstance" / "three pence" / violates the conscience argument seemed to receive -- again, from a number of people who disagree on many other things -- a respectful wave, but little more.  If I remember correctly, Sandy Levinson suggested that the argument is, in today's conditions, pretty much irrelevant to the school-voucher and charitable-choice questions.  (That said, Laura Underkuffler, I should emphasize, did present clearly and powerfully a no-funding argument.)

Now, this near-consensus is, in my view, a good thing.  Still, I couldn't help but be struck by the fact that what is often, in the First Amendment course, taught as, and treated in the cases as, something of a constitutional Ur-text, seemed to carry so little weight with respect to what was, just a few years ago, *the* law-and-religion question.  Interesting.