Re: Locke v. Davey and expanded free exercise rights

[A.E. Brownstein]

Moving away from Lukumi (which never carried as much of a punch for free 
exercise rights as some commentators have argued -- so the Court's limited 
reading of it is hardly a surprise)) and back to the Washington 
constitution and Locke. I am curious, Marci, if you think that Washington's 
interpretation of the free exercise provision of it's constitution violates 
the Establishment clause of the First Amendment -- for the same reasons 
that you believe that RLUIPA violates the Establishment Clause. And if so, 
does the Court's favorable comments about play in the joints and an 
expansive reading of state free exercise rights undercut your argument.

Alan Brownstein
UC Davis


At 09:59 AM 2/27/2004 -0500, you wrote:
My point is simply that the Court in Locke limits Lukumi to its facts--the 
presence of animus or hostility was a necessary trigger for strict 
scrutiny  Animus and hostility were found in Lukumi not through legis 
history as much as the use of the term "sacrifice" in the law.

Marci

In a message dated 2/26/2004 5:10:30 PM Eastern Standard Time, 
[EMAIL PROTECTED] writes:

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-----
From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED]
Sent: Thursday, February 26, 2004 2:16 PM
To: [EMAIL PROTECTED]
Subject: Re: Locke v. Davey and expanded free exercise rights


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.

Marci









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