To clarify Chris's point just a bit: In Iqbal, plaintiff argued that he was
mistreated because he was a Muslim. The government said it had nothing against
Muslims; it was jailing people suspected of terrorism, and unfortunately, that
group is disporportionately Muslim. So the parties set it up as in effect a
choice between disparate treatment and disparate impact. Given that context,
the citation to Washington v. Davis makes sense, and thinking of free exercise
in the same terms also makes sense. This puts some meat on the bones of
Chris's original textual analysis that the sentence is written in the
conditional.
The sentence still has bad potential to be misread when taken out of context.
Quoting Christopher Lund <l...@mc.edu>:
> 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[1]
>
>>>> 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[2]
>> ________________
>> _______________________________________________
>> To post, send message to Religionlaw@lists.ucla.edu
>> To subscribe, unsubscribe, change options, or get password, see
>> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[3]
>>
>> Please note that messages sent to this large list cannot be viewed
>> as private. Anyone can subscribe to the list and read messages that
>> are posted; people can read the Web archives; and list members can
>> (rightly or wrongly) forward 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
> _______________________________________________
> To post, send message to Religionlaw@lists.ucla.edu
> To subscribe, unsubscribe, change options, or get password, see
> http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw[4]
>
> Please note that messages sent to this large list cannot be viewed as
> private. Anyone can subscribe to the list and read messages that are
> posted; people can read the Web archives; and list members can
> (rightly or wrongly) forward the messages to others.
>
>
Douglas Laycock
Yale Kamisar Collegiate Professor of Law
University of Michigan Law School
625 S. State St.
Ann Arbor, MI 48109-1215
734-647-9713
Links:
------
[1] http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
[2] http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402
[3] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
[4] http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw_______________________________________________
To post, send message to Religionlaw@lists.ucla.edu
To subscribe, unsubscribe, change options, or get password, see
http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw
Please note that messages sent to this large list cannot be viewed as private.
Anyone can subscribe to the list and read messages that are posted; people can
read the Web archives; and list members can (rightly or wrongly) forward the
messages to others.
