Mark and Eugene have plausible theories on Tx Monthly and Smith. But no one seems to have a plausible theory on Lukumi and Kiryas Joel. The Kiryas Joel argument about motive is not just accepting existing establishment clause doctrine arguendo, because existing establishment clause doctrine was Lemon, where either a religious purpose or a religious effect or entanglement was fatal. Certainly no requirement of motive. He might have been accepting and importing equal protection doctrine, but for someone as hostile to motive as he claims to be, it makes no sense to import motive into a new doctrinal area. Quoting "Volokh, Eugene" <[EMAIL PROTECTED]>:
I had thought that the Texas Monthly dissent was simply
accepting
the pre-Smith Free Exercise Clause caselaw, whether because Scalia
at
the time hadn't yet squarely focused on the question -- recall that
he
joined the majority in Hobbie two years before, and didn't join Rehnquist's dissent, and that he joined the unanimous Court in
Frazee a
month or two after Texas Monthly -- or because he thought the
Court's
majority still supported the Sherbert/Yoder regime and wasn't ready
to
go along with what eventually became his view in Smith. Eugene ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Douglas
Laycock
Sent: Monday, February 18, 2008 7:24 PM To: religionlaw@lists.ucla.edu Subject: RE: Scalia and Motive I certainly agree that Smith is inconsistent with his Texas Monthly dissent. There he said the the Constitution permits, "and sometimes requires," exemptions for religion. Quoting "Brownstein, Alan" <[EMAIL PROTECTED]>: > At least in free exercise and establishment clause cases,
I
have > never thought it was possible to reconcile what Justice
Scalia
says > in his various opinions. Compare his opinion in
Employment
Division > v. Smith with his dissenting opinion in Texas Monthly,
one
year > earlier. I thought his opinion in the Watchtower Bible
Society
case > was inconsistent with the hybrid rights language in Smith
as
well. > > Alan Brownstein > > ________________________________ > > From: [EMAIL PROTECTED] on behalf of
David
Cruz > Sent: Mon 2/18/2008 6:37 PM > To: Law & Religion issues for Law Academics > Subject: RE: Scalia and Motive > > > > Maybe his Kiryas Joel dissent accepts current EC doctrine arguendo, > though his preferred view (as revealed in his Lukumi and Edwards v. > Aguillard opinions) would render legislative motivation irrelevant in > cases of facially neutral laws? > > > > David B. Cruz > > Professor of Law > > University of Southern California Gould School of Law > > Los Angeles, CA 90089-0071 > > U.S.A. > > > > ________________________________ > > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Douglas > Laycock > Sent: Monday, February 18, 2008 6:13 PM > To: religionlaw@lists.ucla.edu > Subject: Scalia and Motive > > > > 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 > > 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
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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