There's this potentially troubling line in the Supreme Court's recent decision
in Ashcroft v. Iqbal (at least I find it potentially troubling) that I wanted
to raise with you all. Here's the passage:
"The factors necessary to establish a Bivens violation will vary with the
constitutional provision at issue. Where the claim is invidious discrimination
in contravention of the First and Fifth Amendments, our decisions make clear
that the plaintiff must plead and prove that the defendant acted with
discriminatory purpose. Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S.
520, 540*541 (1993) ( First Amendment ); Washington v. Davis, 426 U. S. 229,
240 (1976) ( Fifth Amendment )."
I am a little distressed by this language and even more by the back-to-back
citations of Washington v. Davis and Lukumi. I fear it may tend to suggest
that the Free Exercise Clause now only guards against intentional
discrimination.
I'd read this language another way. I'd read it to say that when a plaintiff
argues a violation of neutrality ("where the claim is invidious
discrimination"), he must plead and prove it with the requisite detail ("the
plaintiff must plead and prove that the defendant acted with discriminatory
purpose"). But a plaintiff can go another route altogether. He can argue that
the law is not generally applicable, and thus avoid all inquiries about
discriminatory purpose. Under my reading, nothing in Iqbal speaks to the
general applicability requirement.
I think my reading is the most plausible one. But it may be that I am being
unduly influenced by my attraction to a strong substantive conception of Free
Exercise. So I'd be interested in what other people think.
P.S. In my defense, surely the Court did not mean to change the Free Exercise
Clause standard in a case about pleading standards, right? Although maybe this
is meaningful as an inadvertent disclosure about where the Free Exercise Clause
is going. (Also note that Justice Alito, who wrote the Newark opinion while on
the Third Circuit, joined this opinion.)
______________________
Christopher C. Lund
Assistant Professor of Law
Mississippi College School of Law
151 E. Griffith St.
Jackson, MS 39201
(601) 925-7141 (office)
(601) 925-7113 (fax)
Papers: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
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