Scalia and Motive
Douglas Laycock
laycockd at umich.edu
Tue Feb 19 06:56:24 PST 2008
Mark and Eugene have plausible theories on Tx Monthly and Smith.
But no one seems to have a plausible theory on Lukumi and Kiryas
Joel.
The Kiryas Joel argument about motive is not just accepting
existing establishment clause doctrine arguendo, because existing
establishment clause doctrine was Lemon, where either a religious
purpose or a religious effect or entanglement was fatal. Certainly
no requirement of motive.
He might have been accepting and importing equal protection
doctrine, but for someone as hostile to motive as he claims to be, it
makes no sense to import motive into a new doctrinal area.
Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:
> 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
>
>
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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