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Locke is a mystery to me. It seems to be a triumph of Chief Justice Rehnquist's quest for a wide deference in the name of states' rights.
On the other hand, WHR's analysis of discrimination is impossible to support. He seems to say that discrimination (a plain and open disparate treatment) is okay as long as it doesn't involve criminal consequences, substantial civil or other legal "penalties." Because only benefits are at stake, the disparate treatment isn't constitutionally significant. This seems a throwback to the old discredited "rights-privileges" distinction.
For the most part, I agree with Justice Scalia's analysis, although I think his hypothetical about Western Europe and France is a stretch at best. But Chief Justice Rehnquist's rationale leads to another hypo that is, I think, more telling. WHR cites US v American Library Association in favor of a broad managerial discretion of public libraries, extending to a variety of choices about what goes into libraries and what does not (thanks to internet filters). The comparison is way off point. Suppose the managers of a public library said no theology students may use the library, or the stacks, or the computers, or the copying machines? WHR's analysis seems to lead to the conclusion that there's no discrimination because there's no "penalty." Scalia's analysis seems far more persuasive -- and far more consistent with the bulk of civil rights / civil liberties precedent: any adverse treatment that leaves an individual worse off than the "baseline" defined by statute or other legal authority is discrimination, and if it is based on a prohibited ground (race, sex, religion etc.), it is constitutionally or legally problematic. From: [EMAIL PROTECTED] on behalf of Greg Baylor Sent: Fri 9/29/2006 1:54 PM To: 'Law & Religion issues for Law Academics' Subject: Locke v. Davey Analysis I am curious as to how those on this list would characterize the analysis used by the majority in Locke v. Davey.
The Court obviously rejected the notion that non-neutral laws essentially always violate the Free Exercise Clause, (presumably) without regard to the magnitude of the burden imposed on the claimant's religious exercise.
At the same the Court did not apply a straightforward substantial burden/compelling state interest/least restrictive means analysis. As I read the majority opinion, after acknowledging the non-neutrality of the law in question, the Court looked at the magnitude of the burden not in isolation, but rather in the context of other factors, including the character of the law that caused the burden on Davey and the importance of the state's interest.
[When I say "the character of the law that caused the burden on Davey," I am referring to the Court's observations about the otherwise religion-friendly character of Washington's education aid law (e.g., Davey could have kept his scholarship and majored in something other than devotional theology at the seriously religious Northwest College).]
In other words, the Court seemed to be applying a multifactorial approach, under which a claimant's weakness on one factor (e.g., burden) theoretically might be rehabilitated by his or her strength on others (e.g., the magnitude of the state's interest).
Do you agree or disagree? Thanks.
Greg Baylor
Gregory S. Baylor Director, Center for Law & Religious Freedom Christian Legal Society 8001 Braddock Road, Suite 300 Springfield, VA 22151 (703) 642-1070 x 3502 (703) 642-1075 fax [EMAIL PROTECTED] http://www.clsnet.org |
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