Scalia and Motive

[Douglas Laycock]

  I just reread /Kiryas Joel/ getting ready for class tomorrow. 
Scalia's dissent insists that the law cannot be unconsitutional
unless enacted for a bad motive.  I had somehow not focused on this
before.  This is only a year after his Lukumi concurrence insisting
that motive is absolutely irrelevant.  And of course there are
similar opinions earlier, such as his dissent in /Edwards v.
Aguillard/.  Does anyone have a theory for reconciling his /Kiryas
Joel/ opinion with the rest?

  For those who want to refresh their recollections, here are the key
quotes from /Kiryas/ /Joel/ and /Lukumi/.  Scalia both times.

  "In order to invalidate a facially neutral law, Justice Souter
would have to show not only that legislators were aware that religion
caused the problems addressed, but also that the legislature's
proposed solution was motivated by a desire to disadvantage or
benefit a religious group (i.e., to disadvantage or benefit them
because of their religion.)"

  "The First Amendment does not refer to the purposes for which
legislators enact laws, but to the effects of the laws
enacted: [quoting the Free Exercise Clause].  . . .  This does not
put us in the business of invalidating laws by reason of the evil
motives of their authors.  Had the Hialeah City Couoncil set out
resolutely to suppress the practices of Santeria, but ineptly adopted
ordinances that failed to do so, I do not see how those laws could be
said to "prohibi[t] the free exercise" of religion.  Nor, in my view,
does it matter that a legislature consistes entirely of the
pure-hearted, if the law it enacts in fact singles out a religious
practice for specia burdens."

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
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