A Theory RE: Scalia and Motive
aebrownstein at ucdavis.edu
Tue Feb 19 09:05:32 PST 2008
If there is a way to explain Scalia's apparently inconsistent language
in these two cases, I think Doug's explanation helps to sort out what is
It isn't that hard to understand Scalia's suggestion that it is proper
to look at motive in evaluating facially neutral legislation in Kiryas
Joel. The Establishment Clause has always had an equal protection
dimension to it (which is good because the Equal Protection Clause is so
rarely employed to deal with religious discrimination.) So it is not
hard to see why Scalia might borrow the equal protection rule for an
Establishment Clause case - particularly an Establishment Clause case
reviewing the favorable treatment of a religious community.
Scalia's resistance to a motive inquiry in Lukumi, a free exercise case,
might be explicable by drawing a distinction between fundamental liberty
rights and equal protection. The Court has always been less willing to
consider legislative motive when fundamental liberty rights are at
issue. Some of its most ringing denunciations of inquiries into
legislative motive have been in free speech cases. So one could argue
that Scalia is simply tracking a distinction that allows inquiries into
legislative motive in EPC cases but not in personal liberty cases.
The problem with this analysis is that Scalia seemed to transform the
Free Exercise Clause in Smith from a personal liberty right into some
kind of equality mandate. Having done that, his continued resistance to
inquiries into legislative motive in Lukumi seems hard to understand -
since Free Exercise is now an equality mandate rather than a liberty
right. Maybe deep down Scalia knows that Free Exercise is really a
liberty right and that basic understanding crept to the surface to
influence his comments in Lukumi.
From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Douglas Laycock
Sent: Tuesday, February 19, 2008 7:43 AM
To: religionlaw at lists.ucla.edu
Subject: A Theory RE: Scalia and Motive
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
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
> 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
> 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
> "The First Amendment does not refer to the purposes for which
> legislators enact laws, but to the effects of the laws enacted:
> the Free Exercise Clause]. . . . This does not put us in the
> 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
> 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
> 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
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
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