Two court decisions of note. One I was pointed to by Instapundit, covered by Eugene Volokh, notes that some judges are starting to categorize religious speech as something different than other speech covered by the first amendment.
So the judge has no hostility towards religion, but "the excesses of the zealous" — apparently just the religiously zealous — are something that must be avoided even by discriminatorily excluding religious groups from the benefits available to comparable secular groups.
The issue is not, contrary to what the judge argues here and earlier in the opinion, "whether one can distinguish between religious speech" (which I take it means "between religious speech and nonreligious speech," especially given the other quotes I give immediately below), nor is it about "the High Court's purported inability to distinguish between a sermon and a speech" or "[t]he purported inability of the High Court to adhere to the distinction embodied in the First Amendment" between religious speech and nonreligious speech, nor about the Court majority's supposed "doubt about the ability to distinguish between religious practice and secular speech." While the majority opinion does turn on whether courts can consistently distinguish (without undue side effects) between religious worship and other religious speech, of course the courts could distinction between religious speech (such as sermons) and secular speech.
The question is whether courts ought to draw such a distinction, in a way that strips religious speech of the same Free Speech Clause protection that secular speech has, and thus discriminates against religious speech, in order to somehow "insulat[e] civil society from the excesses of the zealous." It seems to me that if one really wants to avoid "hostility towards religion," equal treatment of religious speech and nonreligious speech — regardless of what one fears from the "zealous" — is the proper approach.
Lets say that I’m not surprised that the courts are taking this approach, as judicial decision seems to follow popular liberal opinion these days, whether that opinion logically follows the Constitution or the foundations of free thinking and equal treatment under the law.
The other decision I haven’t seen an opinion on yet, only what I read in the paper this morning. A judge in California (again, why am I not surprised) ordered a rollback of Bush’s rollback, so to speak, of the roadless rules that Clinton quickly put into place just before the end of his term.
Forget for a minute that putting the rules in place was a last minute decision by a departing administrator, in the same breath as many other ill-though out rules and controversial pardons. There is an argument that they spent years studying and thinking about those rules before hastily implementing them, but why wait until the last minute?
Anyway, it was the President’s choice to do so. After all, it wasn’t a congressional order, it was an administrative rule change. So why does a judge think that what Bush did, which was to put all the roadless changes on hold or remove them entirely, was something that the judicial branch has a say in. I thought that their only responsibility is to make sure that existing laws are interpreted correctly and followed, and that the constitution is applied correctly. Isn’t reversing an administrative change out of the judicial branch’s reach here?
Anyway, I love how the Washington Post words some of their opening statements.
Ruling against the Bush administration's efforts to open national forests for logging and mining, a federal judge in California on Wednesday set aside a U.S. Forest Service rule that allows governors to decide which land in national forests is suited for development.
Development? Is that the right word here? Anyway they use it several times, even though there is not sense that forest managers for the Feds have any mind to put in condos and golf courses. Perhaps what they mean is put in roads and harvest some of the timber. But the word “development” to me, and I’m sure to many readers, sounds more like housing developments and Wal-Marts. Poor choice of words. Or perhaps purposefully chosen.
The Judges decision was supposedly based on a federal environmental law.
"Eliminating a major program triggers the obligation to perform environmental analysis," Laporte wrote, noting that the administration did none.
I’m curious how much analysis was done during the Clinton administration before people just thought it was a good idea to lock up all that land. Was an analysis of the fire damage that might occur when all that land is off limits to management.
New Mexico Gov. Bill Richardson (D), who is hoping to protect his state's 1.6 million acres of roadless areas, welcomed the court decision. "This is a monumental victory for everyone who enjoys our wild forests," he said.
Bush did change the rule to say that individual state governors could continue to work with the Forest Service to preserve those roadless areas. I would imagine that some would and some wouldn’t. For instance Oregon governor Ted Kulongoski wants to protect those areas, while Idaho governor James Risch wants to manage those areas (by the way, Idaho has some of the largest existing wilderness areas in the lower 48 states already, even without the new roadless areas).
Let me just say that I enjoy hiking and getting into the back country as much as anyone. I hope to see and enjoy all of Oregon’s Wilderness areas in the next few years, and know how much area that entails. It doesn’t look as big on the map, sometimes, as it really is on the ground.
But the real question here is how far does the court’s power extend into the workings of the administrative branch of government?