Scalia and Motive

[Paul Finkelman]

Being in a realist mood, is it possible that Scalia is just totally
result oriented and says what he needs to say on a case-by-case basis to
get where he wants to get?  Just a hypothesis.

Paul Finkelman

  Quoting "Brownstein, Alan" <aebrownstein at ucdavis.edu>:

> 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
>
>

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


Paul Finkelman
President William McKinley Distinguished Professor of Law
     and Public Policy
Albany Law School
80 New Scotland Avenue
Albany, New York   12208-3494

518-445-3386 
pfink at albanylaw.edu