Iqbal and the Free Exercise Clause
laycockd at umich.edu
Wed May 27 11:20:44 PDT 2009
Kennedy wrote Iqbal, and this sentence may well reflect his understanding of Smith and Lukumi. But as Chris Lund noted, what he cites in the Lukumi opinion is two pages on motive that only got two votes. Nine voted to strike the ordinances down, but only two relied on evidence of motive. An aggressive statement about Lukumi, supported by a citation to those two pages, reads as a statement about what those two pages mean, but expressly not a statement about what the rest of the opinion means -- the part that had the support of the Court.
Quoting "Brownstein, Alan" <aebrownstein at ucdavis.edu>:
> Good question. There is certainly some range of opinions on whether a
> law that requires a lot of individualized applications or exceptions
> is sufficiently general for Smith purposes. Also, legislative
> accommodations of religion that do not reach all faiths may not be
> intentionally discriminatory. I also think it is possible to be
> perceived as creating a "religious gerrymander" without deliberately
> intending to do so.
> Alan Brownstein
> From: religionlaw-bounces at lists.ucla.edu
> [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of
> ArtSpitzer at aol.com
> Sent: Wednesday, May 27, 2009 10:33 AM
> To: religionlaw at lists.ucla.edu
> Subject: Re: Iqbal and the Free Exercise Clause
> When would a law that's not neutral or not generally applicable not
> also be intentionally discriminatory? Can a legislature negligently
> or unknowingly enact a law that's not neutral or not generally
> Art Spitzer
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Yale Kamisar Collegiate Professor of Law
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