Justice Stevens

[Douglas Laycock]

I did not mean to suggest anti-Catholic motive in Boerne.  I did mean to suggest that further factual development might have enlightened the Court with respect to its casual assumptions about land use regulation.  The ordinance at issue in Boerne was a single-owner ordinance that applied only to the church. Other property owners had been excluded from the historic district on the express ground that they might object and cause trouble. 

To be protected by RFRA, a Catholic owner of an art museum would have to show that the museum is an exercise of religion.  That's imaginable, but as I think about the actual art museums I know anything about, none of them would qualify, no matter who owned them.    

Quoting Hamilton02 at aol.com:

>
> I strongly object to Doug's implication that somehow the City of Boerne was
> hiding discriminatory motives that would have been revealed had the suit gone
> forward.  The Mayor of Boerne, after all, was a minister and many in  the
> town were Catholic.  As an aside, the Church itself was divided  over 
> who to pray
> for during oral argument. The attempt to paint every loss by a  religious
> entity in the land use process as some sort of covert persecution or
> discrimination is what has made RLUIPA such an intolerable entrant for most
> neighborhoods next to religious entities invoking RLUIPA.
>
> Of course RFRA applied to an art museum owned by a  Catholic.  Isn't that
> precisely the RLUIPA situation, which is undoubtedly  a segment of 
> RFRA?  Stevens
> was correct about that.  If that is not  so, there are a number of developers
> invoking RLUIPA who need to be  notified.
>
> His vote in Cutter and Gonzales are explained in two different ways.   The
> Court considered the Cutter decision to be a no headlines decision, 
> because  the
> situation of prisoners is so radically different from any other possible
> claim.  That is why the Court pointedly justifies the prison provisions of
> RLUIPA on the ground that prisons have a unique capacity to block worship
> altogether.  The Court goes on, however, to repeatedly say that 
> deference  needs to be
> given to prison authorities on matters of safety and leaves open the
> possibility that RLUIPA could unconstitutional in an as-applied manner.
>
> With respect to Gonzales, the government did not do a great job of  defending
> the integrity of its drug laws and why two different drugs under the  same
> schedule need individualized assessment.  Those arguing hoasca and  
> peyote are
> engaging in legal abstractions, not chemical realities.  No  two drugs work
> identically, even if in the same schedule, and no two drugs are  
> necessarily safe
> for the same class of users. Given the tone of Gonzales,  though, DOJ should
> seriously consider backing legislation that exempts the  federal drug laws
> from the reach of RFRA.
>
> Marci
>
> Marci A. Hamilton
> Paul R. Verkuil Chair in Public Law
> Benjamin N. Cardozo School of Law
> Yeshiva University
>
>
>
> In a message dated 6/23/2008 1:06:40 P.M. Eastern Daylight Time,
> laycockd at umich.edu writes:
>
> One possibility is that in Cutter and Gonzales, the equality protecting
> function of religious exemptions was much more apparent.  Ohio openly 
>  said that
> it accommodated good religions in its prisons, but not the bad  religions in
> which the plaintiffs participated; the state was pretty  explicitly 
> arguing for
> its right to designate good and bad religions.  In  Gonzales, the government
> never had a plausible explanation for why it exempted  peyote but not hoasca.
> This sort of discrimination was not developed in  the record in Boerne, which
> was up basically on the pleadings, and the city  did not openly avow it the
> way Ohio did.
> Another possibility is that he was just confused in Boerne, and, less
> likely, that he eventually realized that.  He said that an art  
> museum owned by an
> atheist would not be protected by RFRA.  But of  course, an art 
> museum owned by
> a Catholic almost certainly would not be  protected by RFRA either.  The
> relevant analogy to the church would be an  atheist meeting house, 
> which should be
> protected by RFRA, although many judges  are reluctant to see it that way.
> Quoting Kevin Pybas <kevinpybas at missouristate.edu>:
>
>> Can  someone shed light on why Justice Stevens in Boerne viewed RFRA as a
>>  violation of the Establishment Clause but raised no EC problem with  RLUIPA
>> in Cutter or RFRA in Gonzales?  In Boerne he wrote that  RFRA "provided the
>> Church with a legal weapon that no atheist or  agnostic can obtain. This
>> governmental preference for religion, as  opposed to irreligion, is
> forbidden
>> by the First Amendment."   Shouldn't this understanding have led him to also
>> object in  Cutter and Gonzales?  The answer's probably staring me in the
> face
>> but I don't see it.  Thanks.
>>
>>
>>
>>  Kevin Pybas
>>
>> Missouri State  University
>>
>>
>>
>>
>
>
>
>
>
>
>
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>

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:
------
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