|
I
am not clear about your argument. Are
you saying that Rehnquist changed his mind (he joined Scalia’s
opinion in Lukumi, objecting to any probing in to
legislative motivation) and now favors precisely that kind of probing? In any event, I am not persuaded that the
two cases easily “speak” to each other, give the extraordinary
factual differences, which Rehnquist points out, of course, in Locke. -----Original Message----- On the one hand, Alan is absolutely correct that the
Court refers to expansive state constitutional rights. On the other hand,
the Court dramatically narrows the usefulness of Lukumi in attacking laws for
violation of the federal Free Exercise Clause. The argument that Lukumi's
strict scrutiny applied simply because religion is mentioned, excluded, or treated
differently in a law is defunct. Lukumi's rationale was narrowed to
instances where there is "animus" and "hostility" to
religion. The Court could not have said it more often. |
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