Kennedy wrote Iqbal, and this sentence may well reflect his understanding of
Smith and Lukumi. But as Chris Lund noted, what he cites in the Lukumi opinion
is two pages on motive that only got two votes. Nine voted to strike the
ordinances down, but only two relied on evidence of motive. An aggressive
statement about Lukumi, supported by a citation to those two pages, reads as a
statement about what those two pages mean, but expressly not a statement about
what the rest of the opinion means -- the part that had the support of the
Court.
Quoting "Brownstein, Alan" <aebrownst...@ucdavis.edu>:
> Good question. There is certainly some range of opinions on whether a
> law that requires a lot of individualized applications or exceptions
> is sufficiently general for Smith purposes. Also, legislative
> accommodations of religion that do not reach all faiths may not be
> intentionally discriminatory. I also think it is possible to be
> perceived as creating a "religious gerrymander" without deliberately
> intending to do so.
>
> Alan Brownstein
>
> From: religionlaw-boun...@lists.ucla.edu
> [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of
> artspit...@aol.com
> Sent: Wednesday, May 27, 2009 10:33 AM
> To: religionlaw@lists.ucla.edu
> Subject: Re: Iqbal and the Free Exercise Clause
>
> When would a law that's not neutral or not generally applicable not
> also be intentionally discriminatory? Can a legislature negligently
> or unknowingly enact a law that's not neutral or not generally
> applicable?
>
> Art Spitzer
>
>
> **************
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Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
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