Scalia and Motive

[Volokh, Eugene]

	Not having read your article, I can't say much on the subject.
For everyone on the Court (except Justice Thomas) context -- especially
the historical meaning -- seems to matter, so one would need to know
more of the details.  The presence of a 200+-year-old chapel on campus
would pretty clear be constitutional even for the Ten Commandments
majority, and possibly also for Justice O'Connor and perhaps Souter,
Ginsburg, and Breyer.  The question is whether the same would apply to a
cross that had been there for 70 years (is that right?), and which way
the liturgical inconsistency you describe with traditional Anglicanism,
but the broader consistency between chapels and a cross, cuts.  That's
hard to tell without focusing a lot more on the historical details.

	Eugene

> -----Original Message-----
> From: religionlaw-bounces at lists.ucla.edu 
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Ira 
> (Chip) Lupu
> Sent: Tuesday, February 19, 2008 9:29 AM
> To: Law & Religion issues for Law Academics
> Subject: RE: Scalia and Motive
> 
> 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 law.ucla.edu>
> >Subject: RE: Scalia and Motive
> >To: "Law & Religion issues for Law Academics" 
> ><religionlaw at lists.ucla.edu>
> >
> >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
> (202)994-7053
> _______________________________________________
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>