Scalia and Motive

[Douglas Laycock]

  He would say it's fine because it's part of the American tradition
to have Christian chapels on college campuses.  And he would ignore
or distinguish away his ahistorical talk about monotheism in the Ten
Commandments cases.

  Quoting "Ira (Chip) Lupu" <iclupu at law.gwu.edu>:

> 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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> Please note that messages sent to this large list cannot be viewed
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> (rightly or wrongly) forward the messages to others.
>
>
>

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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