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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Tuesday, June 29, 2010 ::
    "As an historian, McConnell's a good lawyer." So once said Prof. Mark Tushnet about Prof. and former Judge Michael McConnell, in regard to his scholarship on the Free Exercise Clause. And as a spin-doctor on the morning after an asteroid-hit, killed-the-dinosaurs Supreme Court loss, McConnell is still a good lawyer.

    As a further comment on that case, Christian Legal Society v. Martinez, I've posted the following on another forum, and feel it is appropriate for reposting here:

    I've got some more dark for you, if you want to keep on whistling in it.

    The Court didn't merely decline to review the Nondiscrimination Policy in favor of reviewing the All-Comers Policy instead: it declined to believe that Hastings had ever *had* the Nondiscrimination Policy. On remand, CLS has a chance to show that the All-Comers Policy was not applied neutrally, but no chance to argue that any other policy was applied, even though that was clearly the case.

    As Alito points out -- not only was the All-Comers Policy made up for purposes of this litigation -- it's not even Hastings's current policy. The new policy supposedly allows reasonable discrimination based on the purposes of the group. Yet if that were being applied even-handedly to CLS, the case would have been mooted out. On remand CLS may argue that the policy of reasonable membership criteria must allow it to exclude fornicators and active gays. Hastings will say that accommodating such preferences is contrary to public policy. We know how *that* one comes out.

    Btw, this year, at its annual Supreme Court Round-Up, the Federalist Society is evidently embarrassed to present Ted Olson as explicator-in-chief, as it usually does. So who is it presenting instead? Gregory Garre, the W-era SG who argued for Hastings College in the CLS case. Rhymes with "How screwed we arre...."

    :: David M. Wagner 11:14 PM [+] ::

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