Justice Thomas and Smith

[Stuart Buck]

Rick quotes Scalia's dissent:   "If a licensing requirement is otherwise
lawful,
it is in my view not invalidated by the fact that some people will
choose, for religious reasons, to forgo speech rather than observe it.
That would convert an invalid free-exercise claim, see [Smith], into a
valid free-speech claim.

My reaction to the above: What about Smith's mention of "hybrid" claims?
Scalia here seems to oppose any attempt to take an otherwise "invalid free
exercise claim" and create something viable by combining it with a
free-speech claim.  Doesn't that eviscerate any meaningful hybrid claim
doctrine?   After all, if the free speech claim or the free exercise claim
must be independently viable on its own, then what benefit would come from
bringing up a "hybrid" claim?  Or am I missing something?

Stuart Buck
You can access my articles on the Social Science Research Network:
http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=274157



                    Rick Garnett
                    <Rick.Garnett.4 at ND.ED       To:     RELIGIONLAW at listserv.ucla.edu
                    U>                          cc:
                    Sent by: Law &              Subject:     Justice Thomas and Smith
                    Religion issues for
                    Law Academics
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                    06/17/2002 01:29 PM
                    Please respond to Law
                    & Religion issues for
                    Law Academics






Dear all,


My sense has been that -- until today, maybe -- Justice Thomas has not
gone "on record" in support of the holding in <italic>Smith</italic>.  It
had seemed to me an open question whether there were any longer five
votes in support of that holding.  I just read, however, Justice Scalia's
short concurring opinion in today's <italic>Watchtower</italic> decision,
which Justice Thomas joined.


Justice Scalia writes:  "If a licensing requirement is otherwise lawful,
it is in my view not invalidated by the fact that some people will
choose, for religious reasons, to forgo speech rather than observe it.
That would convert a<italic>n invalid free-exercise claim</italic> [my
italics], see [<italic>Smith</italic>], into a valid free-speech claim .
. . ."


Any thoughts?  Am I misreading today's opinion (or earlier ones)?  Is
this a signal, or just nit-picking?


best,


Rick Garnett

Richard W. Garnett

Notre Dame Law School

Notre Dame, IN  46556

(219) 631-6981

garnett.4 at nd.edu

http://www.nd.edu/~ndlaw/faculty/facultypages/garnettr.html