I think the alternative reading that Chris offers is the appropriate way to understand this language. I don't think this language precludes an argument that a law is not neutral or generally applicable without proving discriminatory purpose. I actually thought this language was a plus for free exercise claims. As I recollect in Lukumi, Kennedy could not get a majority to agree that it was permissible to inquire into legislative motive to challenge Hialeah's ordinance. By juxtaposing Lukumi and Washington v. Davis, the Court gives litigators a bit more of an argument that direct inquiries into legislative motive might be as permissible in free exercise cases as they are in equal protection cases. Alan Brownstein
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Wednesday, May 27, 2009 10:00 AM To: religionlaw@lists.ucla.edu Subject: Iqbal and the Free Exercise Clause 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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