Locke v. Davey Analysis

[Hamilton02 at aol.com]

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_ (http://www.clsnet.org/)   





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