I think this is not a persuasive reading of either the opinion or any
opinion onto which the author, Rehnquist, would have signed on. Rehnquist
always looked for the dispositive element in a case, and was rarely interested
in multifactorial tests, or the kind of intuitive weighing they require.
If you trace Rehnquist's free exercise opinions whether maj or diss, he
had a consistent view that animus or hostility is an important, even
determinative, element under the Free Exercise Clause. This opinion reads
like a summary, a looking back, of his free exercise views, and the most
important paragraph is the one where he summarizes the major cases finding a
violation, saying that they all involved animus to religion (or religious
reasons) in some way. He distinguished the Locke situation on the ground (more
than once) that there was no proof of animus.
I understand that there are those on the list who would argue that animus
cannot be pivotal in all free exercise cases, because they would say that
Sherbert is a case that does not involve animus. That is not his reading,
obviously, as he includes it in the cases where animus was proved. (If you
look at Smith's reading of Sherbert, the animus arises from the fact that
religious reasons are treated less well than secular reasons).
Marci Hamilton
Paul R. Verkuil Chair in Public Law
Benjamin N. Cardozo School of Law
Yeshiva University
In a message dated 9/29/2006 3:04:01 P.M. Eastern Standard Time,
[EMAIL PROTECTED] writes:
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