Locke v. Davey does not announce a requirement of anti-religious motive, as I show in a sentence-by-sentence parsing of the opinion in the Harvard Law Review in 2004. It is primarily a burden opinion: refusal to fund does not impose a significant burden, which was indeed a longstanding Rehnquist theme. There is also talk about the importance and narrowness of the state's interest in not funding clergy -- at one point he says the "only" interest at issue here is the interest in not funding the training of clergy -- and other talk that would seem to make the state's interests irrelevant and universalize the rule that refusal to fund is not a burden.
Sherbert is distinguished as a burden opinion, not as a motive opinion. It is true that judges deciding or defending Employment Division v. Smith have characterized Sherbert as a discrimination case. But that is not at all the same as finding bad motive behind that discrimination. Locke v. Davey itself was clearly a discrimination case, and yet the Court found no bad motive. Rehnquist also distinguishes the case striking down rules barring clergy from the legislature (Pate?), which were enacted in 1796; no one has claimed that that was a motive case. Rehnquist takes up the question of motive only in response to Scalia's dissent, and only after distinguishing cases of burdensome regulation and of regulation that intereferes with political rights.
Quoting Gary McCaleb
<[EMAIL PROTECTED]>:
> I will weigh in but briefly--I'm
spending my Saturday dealing with the
> Ninth Circuit's wayward First
Amendment analyses on another case--but
> note this as background to
Davey. I litigated the case at district
> court and on some of the
appeal work before I left ACLJ.
>
> The scholarships were
awarded based on satisfying three criteria: a
> defined level of
academic success; a defined level of financial need
> based on family
income; and intent to attend a qualifying Washington
> university
(including private, pervasively sectarian universities).
> Davey could
have taken exactly the same courses he would take as a
> "theology
major" simply by selecting a major that would not have made
> the
nature of his coursework evident, but to put it simply, Mr. Davey
>
wasn't that kind of guy. It was a classic situation religion-neutral,
> need/performance driven scholarship system that was driven by a
purpose
> statement of preparing Washington students for a productive
future. How
> the state's interest in non-appropriation of state funds
for theology
> training plays into that, I don't know. Its
hyper-separation on
> steroids.
>
> As to Rehnquist's
apparent need to discern "animus" to justify a free
>
exercise claim, that seems to be far outside the four corners of the
>
simple text of the free speech clause and leaves the government with
>
rather broad authority to chill religious _expression_ based on little
>
more than notional interests. Certainly, I think animus in Davey could
> be properly inferred from the program's purpose statement, as the
state
> was making a value judgement that being a pastor would not be
a
> productive role for a Washington citizen.
>
>
Anyway, this is off the top of my head--gotta get back to briefing.
>
Sour grapes here? Well...sure. I could barely recognize the case when
> I read the opinion.....my sense is the Court picked the wrong vehicle
to
> draw a line, and ran over both the Constitutiona and a sterling
young
> man in the process.
>
> /S/ Gary S. McCaleb
> ________________________________
>
>
>
>
Gary S. McCaleb
> Senior Counsel
> (480) 444-0020
ext. 8046
> (480) 444-0028 fax
> [EMAIL PROTECTED]
<mailto:[EMAIL PROTECTED]>
>
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> From:
[EMAIL PROTECTED]
>
[mailto:[EMAIL PROTECTED] On Behalf Of
>
[EMAIL PROTECTED]
> Sent: Saturday, September 30, 2006 8:10
AM
> To: religionlaw@lists.ucla.edu
> Subject:
Re: Locke v. Davey Analysis
>
>
>
> 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 <http://www.clsnet.org/>
>
>
>
>
>
Douglas Laycock
Yale Kamisar Collegiate
Professor of Law
University of Michigan Law School
625 S. State
St.
Ann Arbor, MI 48109-1215
734-647-9713
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