Drift of the Court on religion

[Douglas Laycock]

I don't know the answer to this question either, but it may relate to a different question.  Why didn't Scalia just overrule Sherbert and Yoder instead of distinguishing them in such odd ways?  Hardly anyone can take hybrid rights seriously, and taking his distinction of Sherbert seriously leads to cases like Fraternal Order of Police v. Newark. 

My speculation has always been that his fifth vote wouldn't vote to overrule anything.  And my nominee for such behavior has always been Justice White.  But that is obviously not based on much. 

Quoting "Volokh, Eugene" <VOLOKH at law.ucla.edu>:

>     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[1]
> /79084/>
>
>
>
>

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

Links:
------
[1] http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion
-------------- next part --------------
An HTML attachment was scrubbed...
URL: http://lists.ucla.edu/pipermail/religionlaw/attachments/20080603/23f88104/attachment.htm