Locke v. Davey Analysis
Hamilton02 at aol.com
Hamilton02 at aol.com
Sat Sep 30 08:10:18 PDT 2006
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).
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
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.
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
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