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Given
the ideologically diverse make-up of the majority in Locke v. Davey, I am leery of reaching large conclusions about the
supposed meaning of a case that is factually inapposite. And I still don’t understand why
the one paragraph that addresses Lukumi (I think that
there was just one) has the meaning that you ascribe to it. Your reading requires a kind of
agreement among the seven justices that strikes me as very unlikely. It is easier, again, just to say that on
the facts, Lukumi is inapposite, because that is
clearly true, and all seven could easily agree on that narrow point. And there still remains the little matter
of the Scalia-Rehnquist dissent in Lukumi. What I
don’t understand is why the moderates would agree to cutting back Lukumi, when they don’t like Smith! (Recall, also, that moderates can speak up
when the conservative author of an opinion goes a bit too far, as was the case
in Grutter.
We don’t hear a peep from the moderates in Locke. I think that that is an important
consideration in trying to make sense of Rehnquist’s opinion.) -----Original Message----- Had O'Connor written the opinion, I
would have agreed with you, because she looks at cases case-by-case. But
that is not the Chief's style. He has laid out those instances in which
strict scrutiny applies, and all the examples he gives, he gives under the
heading of hostility/animus. He is very careful in the way he structures
paragraphs, points, etc., and the way he has grouped his discussion points
points strongly to a general rule that the free exercise clause does not
trigger strict scrutiny unless there is some animus (he is interpreting
Sherbert as animus, because there were exemptions for secular reasons, but
specifically not for religious reasons). This is so consistent with Smith
and Boerne, I don't think one is overreading it to say that the possible
interpretations of Lukumi have been reduced. Of course, he is
distinguishing Lukumi as well. Maybe all that the Court did was to distinguish
Lukumi on its facts with far fewer doctrinal consequences than would follow
from “limiting” Lukumi. The cases are so different, in terms
of their facts, that I think that “distinguishing” rather than
“limiting” is what happened.
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