Re: Locke v. Davey Analysis

[Hamilton02]

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: 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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