Scalia and Motive
Ira (Chip) Lupu
iclupu at law.gwu.edu
Tue Feb 19 07:28:46 PST 2008
I think we have to go back to Prof. Finkelman's "realist" question: Justice Scalia has (both before and after Smith) voted to uphold Free Exercise claims (Frazee, Lukumi, Locke v. Davey), but I don't believe he has EVER voted against the government in an Establishment Clause case (including Edwards v. Aguillard, and Santa Fe Ind. School District v. Doe, which are probably the two toughest Est CL cases in which to side with the government during his tenure on the Court.) So will Justice Scalia ever see an Establishment Clause claim that he likes? Or does he just find reasons to vote against them all?
I'll use this question to slide into a piece of shameless self-promotion. Gene Nichol just resigned from the William & Mary presidency, in part over a controversy re: his removing a cross from its default place on the altar table in the school's chapel (the cross can be returned to the table during Christian worship). W & M is a state university. Wasn't Nichol just acting as the Constitution requires in removing that cross from its permanent place on the altar table? What would Justice Scalia say if the new
W & M President returns the cross to that space, and the matter is litigated?
Bob Tuttle and I have explored the question raised by the William & Mary situation (though we of course did not focus on Scalia) in "The Cross at College: Accommodation and Acknowledgment of Religion at Public Universities," available at http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1090218. I suspect that Scalia would vote to uphold such a placement of the cross in that chapel on some sort of "historical acknowledgment" ground, though (as we show in the piece) that argument is very weak in this case, because the Wren Chapel at W & M is designed to look like an 18th century Anglican chapel, and such chapels would not have included a cross. So the cross in that chapel is, as we say in the piece, "glaringly anachronistic."
---- Original message ----
>Date: Tue, 19 Feb 2008 09:56:24 -0500
>From: Douglas Laycock <laycockd at umich.edu>
>Subject: RE: Scalia and Motive
>To: religionlaw at lists.ucla.edu
>
> 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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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
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