The separation of powers defects are well-covered in the majority opinion as
well.
Sent from my Verizon Wireless BlackBerry
-----Original Message-----
From: "Volokh, Eugene" <vol...@law.ucla.edu>
Sender: religionlaw-boun...@lists.ucla.edu
Date: Mon, 11 Apr 2011 13:48:25
To: Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu>
Reply-To: Law & Religion issues for Law Academics <religionlaw@lists.ucla.edu>
Subject: RE: A John Paul Stevens Puzzle
I'm puzzled by the statement that "RFRA was not ... held
unconstitutional solely on federalism grounds" -- as I understand the majority
opinion, it cited only the federalism objections to RFRA, and not the
Establishment Clause. (Justice Stevens' solo concurrence mentioned the
Establishment Clause, but the five other Justices in the majority didn't
endorse that opinion.)
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com
> Sent: Monday, April 11, 2011 1:31 PM
> To: Law & Religion issues for Law Academics
> Subject: Re: A John Paul Stevens Puzzle
>
> RFRA was not challenged nor held unconstitutional solely on federalism
> grounds. That is the post hoc explanation of its proponents.
> But you are correct that RFRA as app to federal law comes up through the
> courts without a constitutional angle because no party will challenge it. It
> is
> the latest example of what is wrong with a system that requires the AG
> Office to defend federal law without serious consideration of whether it is
> actually constitutional or not
Well, but at least following Cutter v. Wilkinson, doesn't it seem
pretty likely that the RFRA is indeed actually constitutional against the
federal government, just as RLUIPA was indeed upheld?
Eugene
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