Scalia and Motive
Mark.Scarberry at pepperdine.edu
Mon Feb 18 20:41:21 PST 2008
The thrust of Justice Scalia's dissent in Texas Monthly was that it should be permissible for a state to accommodate religion (by not taxing it) even if the accommodation is not required by the Free Exercise Clause. The language Doug quotes was itself a quote by Justice Scalia from Hobbie. I think Justice Scalia still believes that the Constitution sometimes requires religious exemptions, at least where particularized decisions are made that include consideration of other concerns besides religion, as in Hobbie and the other unemployment insurance cases. He may also believe that taxation of religious activities raises particular concerns; has there been a taxation case since Texas Monthly? In any event, he did not argue that the exemption in Texas Monthly was required. One reading of his opinion is that existing precedent -- that arguably required exemption -- was so narrowly distinguished that under the existing precedent the exemption was very close to being required and thus certainly could be provided as a voluntary accommodation.
Perhaps the narrowing of the channel (as he put it quoting from the Thomas case) between Scylla (the Free Ex. Clause's demands) and Charybdis (the Establishment Clause's demands) by Texas Monthly convinced him that something needed to be done to open the channel back up, so that state actors would have some freedom of movement. Smith did open up the channel, though not in a way I would have preferred. It seems that Justice Scalia would have been willing to open it up by allowing more accommodation rather than by restricting the application of the Free Ex. clause, but the three justice plurality, and the three justices who concurred in the judgment, took a hard line on the Establishment Clause that prevented accommodation. You might say that the stage was set for Smith by those six justices, including the ones who vehemently dissented in Smith.
That makes me wonder whether Smith might be rethought if the Court's decisions carve out a more accommodationist approach to the Establishment Clause. Perhaps the price of a reinvigorated Free Exercise Clause is a more modest Establishment Clause. But I'm sure that's not an original thought.
From: religionlaw-bounces at lists.ucla.edu on behalf of Douglas Laycock
Sent: Mon 2/18/2008 7:24 PM
To: religionlaw at lists.ucla.edu
Subject: RE: Scalia and Motive
I certainly agree that Smith is inconsistent with his Texas Monthly dissent. There he said the the Constitution permits, "and sometimes requires," exemptions for religion.
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
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas
> 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
> Douglas Laycock
> Yale Kamisar Collegiate Professor of Law
> University of Michigan Law School
> 625 S. State St.
> Ann Arbor, MI 48109-1215
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
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