Oh, there you go again, Marci, talking about a case as if it were something real! :) My comment was not to what was really going on, and what was at stake, but what was decided and what became the official version from the S.Ct.
Of course this is nothing new -- the actual reasons for deciding a case and the legally-acceptable reasons put into an opinion are not always fully congruent. Steve On Mon, Apr 11, 2011 at 8:41 AM, <hamilto...@aol.com> wrote: > Actually, the Establishment Clause arguments were live in *Boerne*. We > briefed them and several of the Justices expressed concerns at oral > argument. What happened is that now-Judge Jeff Sutton, arguing for the > state of Ohio, urged the Justices not to reach the Establishment Clause > issue on the ground that the states might want to enact state religious > liberty statutes. My interpretation of the decision(s) is that he succeeded > in persuading all of the other Justices but Stevens, that it was not > necessary and potentially problematic to reach an Establishment Clause > holding; such a ruling would clearly be dictum in light of the federalism, > separation of powers, and Article V defects in RFRA. > > > Marci > > > In a message dated 4/11/2011 8:35:58 A.M. Eastern Daylight Time, > stevenja...@gmail.com writes: > > Boerne is not an establishment case. Nor is it an equal protection case. > It is a federalism case protecting state power from federal interference > under section 5 of the 14th amendment -- congress must make findings that > the state is engaging in serious misbehavior (I know -- too loose a word > choice here) before the federal government can act against the state to > enforce the substantive provisions of the 14th Amendment -- and even if it > makes the requisite findings, the action taken must be congruent and > proportional to the harm exposed. > > In Boerne, RFRA was a sledge hammer to solve either a non-existent problem > or on that should have been swatted with a fly swatter instead. > > So Boerne is not an establishment clause case. > > Of course Stevens' concurrence is just that -- a concurrence -- and does > not create the rule of the case. > > Can I reconcile the reasoning of the concurrence with the decision in O > Centro --yes, but only because one (Boerne) had protected activity (free > exercise) and the other (O Centro) did not (drug use). > > > > _______________________________________________ > 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. > -- Prof. Steven Jamar Howard University School of Law Associate Director, Institute of Intellectual Property and Social Justice (IIPSJ)
_______________________________________________ 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.
