Scalia and Motive

Ira (Chip) Lupu iclupu at
Tue Feb 19 09:28:56 PST 2008

So what do you expect Scalia would say about the default placement of that cross on the altar table in the chapel at Willima & Mary?

---- Original message ----
>Date: Tue, 19 Feb 2008 09:21:31 -0800
>From: "Volokh, Eugene" <VOLOKH at>  
>Subject: RE: Scalia and Motive  
>To: "Law & Religion issues for Law Academics" <religionlaw at>
>Chip Lupu writes:
>> 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 take it that Justice Scalia simply has a substantively very
>narrow view of the Establishment Clause, such as (for instance) Justices
>Stevens, Souter, Ginsburg, and Breyer have a substantively very narrow
>view of the judicially enforceable article I section 8 constraints on
>fedearl power.  I don't see why we should cast this as "[the Justices]
>find reasons to vote against [all or nearly all the claims]" -- they
>*have* reasons, flowing from their understanding of the substantive
>scope of the constitutional right.
>	Likewise, Justice Stevens has generally taken a very broad view
>of the Establishment Clause; he has occasionally voted to reject an
>Establishment Clause claim that has reached the Court, but quite rarely
>(and the only cases that come to mind, at least recently, have been
>unanimous or nearly-unanimous decisions, such as Witters, Widmar, and
>Lamb's Chapel).  That doesn't mean that "he just finds reasons to vote
>[for] them all" -- only that his understanding of the breadth of the
>Establishment Clause is such a reason.
>	Eugene
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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

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