A Theory RE: Scalia and Motive

[Douglas Laycock]

  Maybe Scalia thought the law in Kiryas Joel was facially neutral,
and that the law in Lukumi was facially discriminatory.  His Kiryas
Joel comments begin with "In order to invalidate a facially neutral
law . . ."  Then in Kiryas Joel, he might have been importing the
equal protection rule, from cases like Underwood v. Alabama and
Massachusetts v. Feeney, that a neutral rule enacted for a
discriminatory motive is unconstitutional.  That is still
inconsistent with his statement in Lukumi that if the law did nto
discriminate against religion, motive would be irrelevant.  But
perhaps he was assuming the Underwood-Feeney rule arguendo.

  That's the best I can do for him.  Paul Finkelman's answer seems
more likely, but my rationalization does not seem nuts.

  > ________________________________
>
> 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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