As to Justice White, perhaps his position is related to his authorship of Washington v. Davis, rejecting disparate impact test in another context.
________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, June 03, 2008 10:18 AM To: Law & Religion issues for Law Academics Subject: Drift of the Court on religion I'm sure Justice Scalia is not credible to lots of people, just as any Justice is not credible to lots of people. But I take it the question should be whether his arguments about the Establishment Clause -- the question he seemed to be discussing -- are sound, a matter that is logically quite independent of whether one thinks his (and Justice Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the Free Exercise Clause was sound. Incidentally, speaking of the drift of the Court on religion -- has anyone studied why Justice White provided the fifth vote for the Smith majority? He did originally vote with Harlan in dissent in Sherbert v. Verner, but then seemed to accept the constitutionally compelled exemptions regime -- not joining, for instance, Rehnquist's and Stevens' expressions of skepticism on the subject -- and in Bowen v. Roy took the most pro-claimant view of any Justice. Yet in Smith he changed his view. Any thoughts on why he so concluded? Was he, for instance, persuaded by his thirty years of experience dealing with the constitutionally compelled exemptions regime that Scalia's critique was correct? Or did he always take the view that the regime was unsound and should be jettisoned at the first opportunity, but that while it continued it should be enforced relatively rigorously? Eugene ________________________________ From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad & Linda Sent: Tuesday, June 03, 2008 5:57 AM To: Law & Religion issues for Law Academics Subject: Re: Scalia Decreis Drift of Court On Religion I'm not sure the author of the majority opinion in Employment Division V Smith is the most credible voice to criticize the Court's handling of religion. Brad Pardee ----- Original Message ----- From: Joel Sogol <mailto:[EMAIL PROTECTED]> To: Religionlaw <mailto:religionlaw@lists.ucla.edu> Sent: Monday, June 02, 2008 6:44 PM Subject: Scalia Decreis Drift of Court On Religion Scalia Decries Drift of Court On Religion - June 2, 2008 - The New York Sun <http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion /79084/>
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