I just reread /Kiryas Joel/ getting ready for class tomorrow. Scalia's dissent insists that the law cannot be unconsitutional unless enacted for a bad motive. I had somehow not focused on this before. This is only a year after his Lukumi concurrence insisting that motive is absolutely irrelevant. And of course there are similar opinions earlier, such as his dissent in /Edwards v. Aguillard/. Does anyone have a theory for reconciling his /Kiryas Joel/ opinion with the rest? For those who want to refresh their recollections, here are the key quotes from /Kiryas/ /Joel/ and /Lukumi/. Scalia both times. "In order to invalidate a facially neutral law, Justice Souter would have to show not only that legislators were aware that religion caused the problems addressed, but also that the legislature's proposed solution was motivated by a desire to disadvantage or benefit a religious group (i.e., to disadvantage or benefit them because of their religion.)" "The First Amendment does not refer to the purposes for which legislators enact laws, but to the effects of the laws enacted: [quoting the Free Exercise Clause]. . . . This does not put us in the business of invalidating laws by reason of the evil motives of their authors. Had the Hialeah City Couoncil set out resolutely to suppress the practices of Santeria, but ineptly adopted ordinances that failed to do so, I do not see how those laws could be said to "prohibi[t] the free exercise" of religion. Nor, in my view, does it matter that a legislature consistes entirely of the pure-hearted, if the law it enacts in fact singles out a religious practice for specia burdens." 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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