Scalia and Motive
VOLOKH at law.ucla.edu
Mon Feb 18 21:18:37 PST 2008
I had thought that the Texas Monthly dissent was simply accepting
the pre-Smith Free Exercise Clause caselaw, whether because Scalia at
the time hadn't yet squarely focused on the question -- recall that he
joined the majority in Hobbie two years before, and didn't join
Rehnquist's dissent, and that he joined the unanimous Court in Frazee a
month or two after Texas Monthly -- or because he thought the Court's
majority still supported the Sherbert/Yoder regime and wasn't ready to
go along with what eventually became his view in Smith.
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Monday, February 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
> never thought it was possible to reconcile what Justice Scalia
> in his various opinions. Compare his opinion in Employment
> v. Smith with his dissenting opinion in Texas Monthly, one
> earlier. I thought his opinion in the Watchtower Bible Society
> was inconsistent with the hybrid rights language in Smith as
> Alan Brownstein
> From: religionlaw-bounces at lists.ucla.edu on behalf of David
> 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
> though his preferred view (as revealed in his Lukumi and
> Aguillard opinions) would render legislative motivation
> 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
> 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.
> dissent insists that the law cannot be unconsitutional unless
> for a bad motive. I had somehow not focused on this before.
> only a year after his Lukumi concurrence insisting that motive
> absolutely irrelevant. And of course there are similar
> earlier, such as his dissent in Edwards v. Aguillard. Does
> have a theory for reconciling his Kiryas Joel opinion with the
> For those who want to refresh their recollections, here are
> quotes from Kiryas Joel and Lukumi. Scalia both times.
> "In order to invalidate a facially neutral law, Justice Souter
> have to show not only that legislators were aware that
> 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
> 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
> [quoting the Free Exercise Clause]. . . . This does not put
> the business of invalidating laws by reason of the evil
> their authors. Had the Hialeah City Couoncil set out
> suppress the practices of Santeria, but ineptly adopted
> that failed to do so, I do not see how those laws could be
> "prohibi[t] the free exercise" of religion. Nor, in my view,
> matter that a legislature consistes entirely of the
> the law it enacts in fact singles out a religious practice for
> 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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