Locke v. Davey Analysis

[Douglas Laycock]

  /Locke v. Davey/ does not announce a requirement of anti-religious
motive, as I show in a sentence-by-sentence parsing of the opinion in
the Harvard Law Review in 2004.  It is primarily a burden opinion: 
refusal to fund does not impose a significant burden, which was
indeed a longstanding Rehnquist theme.  There is also talk about the
importance and narrowness of the state's interest in not funding
clergy -- at one point he says the "only" interest at issue here is
the interest in not funding the training of clergy -- and other talk
that would seem to make the state's interests irrelevant and
universalize the rule that refusal to fund is not a burden.

  /Sherbert/ is distinguished as a burden opinion, not as a motive
opinion.  It is true that judges deciding or defending /Employment
Division v. Smith/ have characterized /Sherbert/ as a discrimination
case.  But that is not at all the same as finding bad motive behind
that discrimination.  /Locke v. Davey/ itself was clearly a
discrimination case, and yet the Court found no bad motive. 
Rehnquist also distinguishes the case striking down rules barring
clergy from the legislature (/Pate/?), which were enacted in 1796; no
one has claimed that that was a motive case.  Rehnquist takes up the
question of motive only in response to Scalia's dissent, and only
after distinguishing cases of burdensome regulation and of regulation
that intereferes with political rights.

  Quoting Gary McCaleb <gmccaleb at telladf.org>:

> I will weigh in but briefly--I'm spending my Saturday dealing with
the
> Ninth Circuit's wayward First Amendment analyses on another
case--but
> note this as background to Davey.  I litigated the case at district
> court and on some of the appeal work before I left ACLJ.
>
> The scholarships were awarded based on satisfying three criteria: 
a
> defined level of academic success; a defined level of financial
need
> based on family income; and intent to attend a qualifying
Washington
> university (including private, pervasively sectarian universities).
> Davey could have taken exactly the same courses he would take as a
> "theology major" simply by selecting a major that would not have
made
> the nature of his coursework evident, but to put it simply, Mr.
Davey
> wasn't that kind of guy.  It was a classic situation
religion-neutral,
> need/performance driven scholarship system that was driven by a
purpose
> statement of preparing Washington students for a productive
future.  How
> the state's interest in non-appropriation of state funds for
theology
> training plays into that, I don't know.  Its hyper-separation on
> steroids.
>
> As to Rehnquist's apparent need to discern "animus" to justify a
free
> exercise claim, that seems to be far outside the four corners of
the
> simple text of the free speech clause and leaves the government
with
> rather broad authority to chill religious expression based on
little
> more than notional interests.  Certainly, I think animus in Davey
could
> be properly inferred from the program's purpose statement, as the
state
> was making a value judgement that being a pastor would not be a
> productive role for a Washington citizen.
>
> Anyway, this is off the top of my head--gotta get back to briefing.
> Sour grapes here?  Well...sure.  I could barely recognize the case
when
> I read the opinion.....my sense is the Court picked the wrong
vehicle to
> draw a line, and ran over both the Constitutiona and a sterling
young
> man in the process.
>
> /S/  Gary S. McCaleb
> ________________________________
>
>
>
>       Gary S. McCaleb
>       Senior Counsel
>       (480) 444-0020 ext. 8046
>       (480) 444-0028 fax
>       gmccaleb at tellADF.org <mailto:gmccaleb at tellADF.org>
> ________________________________
>
>
> CONFIDENTIALITY NOTICE
> This electronic mail message and any accompanying documents contain
> information belonging to the sender which is confidential and
legally
> privileged. This information is intended only for the use of the
> individual or entity to whom it was sent as indicated above. If you
are
> not the intended recipient, any disclosure, copying, distribution,
or
> action taken in reliance on the contents of the information
contained in
> this electronic mail message is strictly prohibited. If you have
> received this message in error, please delete it immediately, and
call
> (480-444-0020) to advise me that you received it. Thank you.
PRIVILEGED
> AND CONFIDENTIAL - ATTORNEY CLIENT COMMUNICATION/ATTORNEY WORK
PRODUCT
>
>
>
>
> ________________________________
>
>         From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> Hamilton02 at aol.com
>         Sent: Saturday, September 30, 2006 8:10 AM
>         To: religionlaw at lists.ucla.edu
>         Subject: Re: Locke v. Davey Analysis
>
>
>
>         I think this is not a persuasive reading of either the
opinion
> or any opinion onto which the author, Rehnquist, would have signed
on.
> Rehnquist always looked for the dispositive element in a case, and
was
> rarely interested in multifactorial tests, or the kind of intuitive
> weighing they require.   If you trace Rehnquist's free exercise
opinions
> whether maj or diss, he had a consistent view that animus or
hostility
> is an important, even determinative, element under the Free
Exercise
> Clause.  This opinion reads like a summary, a looking back, of his
free
> exercise views, and the most important paragraph is the one where
he
> summarizes the major cases finding a violation, saying that they
all
> involved animus to religion (or religious reasons) in some way. He
> distinguished the Locke situation on the ground (more than once)
that
> there was no proof of animus.
>
>         I understand that there are those on the list who would
argue
> that animus cannot be pivotal in all free exercise cases, because
they
> would say that Sherbert is a case that does not involve animus. 
That is
> not his reading, obviously, as he includes it in the cases where
animus
> was proved.  (If you look at Smith's reading of Sherbert, the
animus
> arises from the fact that religious reasons are treated less well
than
> secular reasons).
>
>
>         Marci Hamilton
>
>
>         Paul R. Verkuil Chair in Public Law
>         Benjamin N. Cardozo School of Law
>         Yeshiva University
>
>
>
>
>
>
>         In a message dated 9/29/2006 3:04:01 P.M. Eastern Standard
Time,
> gbaylor at clsnet.org writes:
>
>
>                 I am curious as to how those on this list would
> characterize the analysis used by the majority in Locke v. Davey.
>
>                 The Court obviously rejected the notion that
non-neutral
> laws essentially always violate the Free Exercise Clause,
(presumably)
> without regard to the magnitude of the burden imposed on the
claimant's
> religious exercise.
>
>                 At the same the Court did not apply a
straightforward
> substantial burden/compelling state interest/least restrictive
means
> analysis.  As I read the majority opinion, after acknowledging the
> non-neutrality of the law in question, the Court looked at the
magnitude
> of the burden not in isolation, but rather in the context of other
> factors, including the character of the law that caused the burden
on
> Davey and the importance of the state's interest.
>
>                 [When I say "the character of the law that caused
the
> burden on Davey," I am referring to the Court's observations about
the
> otherwise religion-friendly character of Washington's education aid
law
> (e.g., Davey could have kept his scholarship and majored in
something
> other than devotional theology at the seriously religious Northwest
> College).]
>
>                 In other words, the Court seemed to be applying a
> multifactorial approach, under which a claimant's weakness on one
factor
> (e.g., burden) theoretically might be rehabilitated by his or her
> strength on others (e.g., the magnitude of the state's interest).
>
>                 Do you agree or disagree?  Thanks.
>
>                 Greg Baylor
>
>                 Gregory S. Baylor
>                 Director, Center for Law & Religious Freedom
>                 Christian Legal Society
>                 8001 Braddock Road, Suite 300
>                 Springfield, VA 22151
>                 (703) 642-1070 x 3502
>                 (703) 642-1075 fax
>                 gbaylor at clsnet.org
>                 http://www.clsnet.org[1]
<http://www.clsnet.org/[2]>
>
>
>
>
>

Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI  48109-1215
  734-647-9713

Links:
------
[1] /horde/services/go.php?url=http%3A%2F%2Fwww.clsnet.org
[2] /horde/services/go.php?url=http%3A%2F%2Fwww.clsnet.org%2F

-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20061001/e9ccfa97/attachment.html