Scalia and Motive

Ed Brayton stcynic at
Mon Feb 18 18:47:05 PST 2008

The very first line of his dissent in Edwards, as Douglas alludes to, seems
to deny the validity of considering motive:


"Even if I agreed with the questionable premise that legislation can be
invalidated under the Establishment Clause on the basis of its motivation
alone, without regard to its effects, I would still find no justification
for today's decision."


But there is a second level of contradiction in that decision as well; the
opinion in Edwards conflicts with his often-stated opposition to considering
the legislative history of the bill. He has railed against the legitimacy of
judges citing the legislative history of a bill, yet he does so in that
decision. He even makes the very strange argument that those who wrote the
bill were aware of the potential constitutional problems and had taken an
oath to uphold the constitution, yet they passed it anyway - as though that
was somehow evidence of its constitutionality. The Edwards dissent was
clearly not one of Justice Scalia's stronger arguments.


Ed Brayton


From: religionlaw-bounces at
[mailto:religionlaw-bounces at] On Behalf Of Douglas Laycock
Sent: Monday, February 18, 2008 9:13 PM
To: religionlaw at
Subject: Scalia and Motive


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

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