Strict scrutiny and motives
VOLOKH at law.ucla.edu
Mon Sep 19 09:30:06 PDT 2005
One purpose of strict scrutiny is indeed to root out improper
legislative motives; but it seems to me that it can't be the only one.
Consider, for instance, Florida Star v. B.J.F., where the Court used
strict scrutiny to strike down a ban on publishing the names of rape
victims; while some of the analysis -- the argument that the law was
unconstitutional for restricting the media but not backyard gossips --
might be seen as an attempt to smoke out improper motive, the rest can't
be easily explained that way, and even the why-not-backyard-gossips?
argument isn't so much about improper *motives* but rather about
constitutionally impermissible means.
The same, I think, is true as to Ashcroft v. ACLU, Ashcroft v. Free
Speech Coalition, and many other cases. Likewise for intermediate
scrutiny, see, e.g., Central Hudson and, I'd say, even Craig v. Boren
(though there might be more disagreement there). And, focusing on
religious freedom, strict scrutiny in pure religious accommodations
cases (setting aside the possible Sherbert individualized-exemption
exception) has generally not been about improper motives, see, e.g.,
Wisconsin v. Yoder, except in a pretty metaphorical sense of
More broadly, smoking out improper legislative motives is indeed an
important aspect of many constitutional inquiries, whether framed in
terms of heightened scrutiny or not. But it's not *the* purpose of
those inquiries; many laws that are unconstitutional are
unconstitutional even though they're well-motivated. See generally
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
RJLipkin at aol.com
Sent: Monday, September 19, 2005 8:13 AM
To: religionlaw at lists.ucla.edu
Subject: Re: 6th Cir. and RLUIPA
In a message dated 9/19/2005 10:53:42 AM Eastern Standard Time,
Hamilton02 at aol.com writes:
if strict scrutiny requires deference to the government, we are no
longer in the territory of strict scrutiny.
Let me add my two (maybe one) cent(s) and then bow out. As I
understand it, strict scrutiny is designed with the specific purpose of
rooting out improper (unconstitutional) legislative motives. If that's
right, Marci seems obviously correct. Rooting out such purposes seems
intuitively at least to require an aggressively non-deferential inquiry.
Robert Justin Lipkin
Professor of Law
Widener University School of Law
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