Covenant has published The Hard Case Making Bad Law by Dale Rye. He starts out:
I have been asked to comment on the letter opinion of April 3 in the Virginia parishes case. My initial reaction: this 88-page document is probably about as well educated a discussion as we are likely to see from any of the judges dealing with the Episcopal/Anglican meltdown. My simultaneous reaction: that means we are all—liberals and conservatives alike—in a heap of trouble. My explanation may take awhile, but be patient… I will get there.
I must preface this by warning that I am not a member of the Virginia bar, and that Judge Randy Bellows’ letter opinion is expressly and exclusively based on a Virginia statute—Va. Code Sec. 57-9(A)—that has no analogue in Texas or most other states. That is, in fact, one of the most important things to remember when reading the opinion. The court honestly believes that it has put to one side all of the issues raised by the religion clauses in the U.S. and Virginia Constitutions; those are to be decided at a subsequent hearing on May 28. Other constitutional issues (including the Contracts Clause) will not be heard until the final hearing in October. Thus, the April 3 opinion has no direct application outside Virginia. Only a lawyer from that state can estimate how likely the decision is to hold up on subsequent appeals.
What I will comment on are the ways in which this decision illustrates why secular litigation was a spectacularly bad idea for all the parties to this dispute. Under the “hard cases make bad law” principle, this case (and those like it in other states) have the potential to seriously damage the constitutional rights of Christians-and all other religious practitioners-throughout this country. The problem with inviting an outsider in to clean your house is that he may throw out your treasures while trying to dispose of the trash. Ultimately, you may find yourself in possession of a place that is no longer recognizably your home…