“Dubious”

The editorial page of the New York Times has come out in favor of Judge Richard Stearns’s decision in ACLU v. Sebelius.  The editorial is entirely bereft of legal analysis, other than offering the obviously heartfelt but otherwise unilluminating view that the opinion  is “sound.”  The editorial concludes with this:

The sound ruling could have implications for the faith-based initiative begun by President George W. Bush and continued under President Obama by calling into question the dubious notion of giving churches and other groups wide latitude to use public money for their religion-based social service programs.

I am not sure whether this was intended seriously or not, but on the assumption that it was, I’m afraid it is sorely, wildly mistaken — indeed, positively “dubious” as a legal matter.  On no plausible understanding of the Establishment Clause could the activity of distributing public money on a neutral basis to organizations which perform secular functions with religious motivations violate the Establishment Clause, at least not as the Clause has been interpreted by the Supreme Court, or as a matter of historical practice, or as a matter of tradition, or by any other constitutional methodology that has any serious adherents.  The claim is sufficiently extraordinary to motivate me to create a special new tag, “The New York Times on the Religion Clauses.”

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