Scalia and Motive

[Brownstein, Alan]

At least in free exercise and establishment clause cases, I have never thought it was possible to reconcile what Justice Scalia says in his various opinions. Compare his opinion in Employment Division v. Smith with his dissenting opinion in Texas Monthly, one year earlier. I thought his opinion in the Watchtower Bible Society case was inconsistent with the hybrid rights language in Smith as well.
 
Alan Brownstein

________________________________

From: religionlaw-bounces at lists.ucla.edu on behalf of David Cruz
Sent: Mon 2/18/2008 6:37 PM
To: Law & Religion issues for Law Academics
Subject: RE: Scalia and Motive



Maybe his Kiryas Joel dissent accepts current EC doctrine arguendo, though his preferred view (as revealed in his Lukumi and Edwards v. Aguillard opinions) would render legislative motivation irrelevant in cases of facially neutral laws?

 

David B. Cruz

Professor of Law

University of Southern California Gould School of Law

Los Angeles, CA 90089-0071

U.S.A.

 

________________________________

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, February 18, 2008 6:13 PM
To: religionlaw at lists.ucla.edu
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
  734-647-9713

-------------- next part --------------
A non-text attachment was scrubbed...
Name: not available
Type: application/ms-tnef
Size: 7342 bytes
Desc: not available
Url : http://lists.ucla.edu/pipermail/religionlaw/attachments/20080218/00eb0235/attachment.bin