Drift of the Court on religion

[Brian Landsberg]

As to Justice White, perhaps his position is related to his authorship
of Washington v. Davis, rejecting disparate impact test in another
context.

 

________________________________

From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Volokh, Eugene
Sent: Tuesday, June 03, 2008 10:18 AM
To: Law & Religion issues for Law Academics
Subject: Drift of the Court on religion

 

    I'm sure Justice Scalia is not credible to lots of people, just as
any Justice is not credible to lots of people.  But I take it the
question should be whether his arguments about the Establishment Clause
-- the question he seemed to be discussing -- are sound, a matter that
is logically quite independent of whether one thinks his (and Justice
Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the
Free Exercise Clause was sound.

 

    Incidentally, speaking of the drift of the Court on religion -- has
anyone studied why Justice White provided the fifth vote for the Smith
majority?  He did originally vote with Harlan in dissent in Sherbert v.
Verner, but then seemed to accept the constitutionally compelled
exemptions regime -- not joining, for instance, Rehnquist's and Stevens'
expressions of skepticism on the subject -- and in Bowen v. Roy took the
most pro-claimant view of any Justice.  Yet in Smith he changed his
view.  Any thoughts on why he so concluded?  Was he, for instance,
persuaded by his thirty years of experience dealing with the
constitutionally compelled exemptions regime that Scalia's critique was
correct?  Or did he always take the view that the regime was unsound and
should be jettisoned at the first opportunity, but that while it
continued it should be enforced relatively rigorously?

    

    Eugene

	 

	
________________________________


	From: religionlaw-bounces at lists.ucla.edu
[mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Brad & Linda
	Sent: Tuesday, June 03, 2008 5:57 AM
	To: Law & Religion issues for Law Academics
	Subject: Re: Scalia Decreis Drift of Court On Religion

	I'm not sure the author of the majority opinion in Employment
Division V Smith is the most credible voice to criticize the Court's
handling of religion.

	 

	Brad Pardee

		----- Original Message ----- 

		From: Joel Sogol <mailto:jlsatty at wwisp.com>  

		To: Religionlaw <mailto:religionlaw at lists.ucla.edu>  

		Sent: Monday, June 02, 2008 6:44 PM

		Subject: Scalia Decreis Drift of Court On Religion

		 

		Scalia Decries Drift of Court On Religion - June 2, 2008
- The New York Sun
<http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion
/79084/>  

		 

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