Iqbal and the Free Exercise Clause

[Christopher Lund]

There's this potentially troubling line in the Supreme Court's recent decision in Ashcroft v. Iqbal (at least I find it potentially troubling) that I wanted to raise with you all.  Here's the passage:
 
"The factors necessary to establish a Bivens violation will vary with the constitutional provision at issue. Where the claim is invidious discrimination in contravention of the First and Fifth Amendments, our decisions make clear that the plaintiff must plead and prove that the defendant acted with discriminatory purpose. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540*541 (1993) ( First Amendment ); Washington v. Davis, 426 U. S. 229, 240 (1976) ( Fifth Amendment )."
 
I am a little distressed by this language and even more by the back-to-back citations of Washington v. Davis and Lukumi.  I fear it may tend to suggest that the Free Exercise Clause now only guards against intentional discrimination.  
 
I'd read this language another way.  I'd read it to say that when a plaintiff argues a violation of neutrality ("where the claim is invidious discrimination"), he must plead and prove it with the requisite detail ("the plaintiff must plead and prove that the defendant acted with discriminatory purpose").  But a plaintiff can go another route altogether.  He can argue that the law is not generally applicable, and thus avoid all inquiries about discriminatory purpose.  Under my reading, nothing in Iqbal speaks to the general applicability requirement.  
 
I think my reading is the most plausible one.  But it may be that I am being unduly influenced by my attraction to a strong substantive conception of Free Exercise.  So I'd be interested in what other people think.
 
P.S.  In my defense, surely the Court did not mean to change the Free Exercise Clause standard in a case about pleading standards, right?  Although maybe this is meaningful as an inadvertent disclosure about where the Free Exercise Clause is going.  (Also note that Justice Alito, who wrote the Newark opinion while on the Third Circuit, joined this opinion.)
 
 
 
______________________
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS  39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
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