Iqbal and the Free Exercise Clause

Ira (Chip) Lupu iclupu at
Wed May 27 11:44:35 PDT 2009

Doesn't Iqbal's context of a Bivens action for damages against public officials help explain this statement?  The issue is not just whether a government policy might violate the Free Exercise Clause(think the "no beards" rule in FOP v. Newark), but whether the defendant public official intentionally violated a known constitutional right.  In that context, one cannot expect to recover damages in a case in which reasonable lawyers and judges will differ about "neutrality" or "general applicability."  In such a case, there may be a violation of the Free Exercise Clause, but not a violation of the sort that will overcome the qualified immunity of officers. 

---- Original message ----
>Date: Wed, 27 May 2009 12:00:13 -0500
>From: "Christopher Lund" <Lund at>  
>Subject: Iqbal and the Free Exercise Clause  
>To: <religionlaw at>
>   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:
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Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW 
Washington, DC 20052

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