That makes sense and does a lot to explain it. Although I'm still then a
little confused by the opinion. I mean if we agree that (1) Free Exercise
violations do not require a showing of bad motive (just a lack of general
applicability), and (2) Bivens liability does not require a showing of bad
motive (just a violation of clearly established law) * then why does the Court
suggest that a plaintiff must show bad motive to get Bivens liability premised
on an FEC violation?
To put it another way, why can't one premise a Bivens claim on a pure failure
of general applicability (without any finding of bad motive)? I mean, it's
possible to imagine a law that is passed with good motives, but so obviously
fails the general applicability requirement that it is contrary to clearly
established law (i.e., Lukumi). As a result, officials acting under such a law
would have their qualified immunity overcome, and thus be liable for damages
under Bivens (or Section 1983). Iqbal seems to reject this, buy why?
Based on what everyone has been saying, I'm now thinking that all this is
interesting, but probably way beyond what the Court intended to say or suggest.
Maybe Iqbal says what it says about Free Exercise simply because the
plaintiffs in Iqbal were alleging intentional religious discrimination of an
obvious and flagrant kind. The Court simply isn't thinking about general
applicability, and doesn't mean to say or change anything about it.
Oh and finally, I think Art Spitzer earlier asked for an example of a law that
was neutral, but not generally applicable. A good example is FOP v. Newark
(which Professor Lupu alludes to below). The citation is 170 F.3d 359 (3d Cir.
1999), and it's written by then-Judge Alito. I think we've discussed it on
this listserv a couple times before. The case finds a police department's
policy not generally applicable. I don't think it says anything about motive
one way or the other * the point is that the lack of general applicability
makes motive irrelevant.
Best,
Chris
______________________
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
>>> icl...@law.gwu.edu 5/27/2009 1:44 PM >>>
Doesn't Iqbal's context of a Bivens action for damages against public officials
help explain this statement? The issue is not just whether a government policy
might violate the Free Exercise Clause(think the "no beards" rule in FOP v.
Newark), but whether the defendant public official intentionally violated a
known constitutional right. In that context, one cannot expect to recover
damages in a case in which reasonable lawyers and judges will differ about
"neutrality" or "general applicability." In such a case, there may be a
violation of the Free Exercise Clause, but not a violation of the sort that
will overcome the qualified immunity of officers.
---- Original message ----
>Date: Wed, 27 May 2009 12:00:13 -0500
>From: "Christopher Lund" <l...@mc.edu>
>Subject: Iqbal and the Free Exercise Clause
>To: <religionlaw@lists.ucla.edu>
>
> 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
>________________
>_______________________________________________
>To post, send message to Religionlaw@lists.ucla.edu
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>the messages to others.
Ira C. Lupu
F. Elwood & Eleanor Davis Professor of Law
George Washington University Law School
2000 H St., NW
Washington, DC 20052
(202)994-7053
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