Scalia and Motive

[Volokh, Eugene]

    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. 
 
    Eugene


________________________________

	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
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

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