I agree with what's been written, but I'm trying to make sense specifically of Stevens. (I'm working on a paper on Stevens and the religion clauses.) My question wasn't whether it's possible to reconcile the majority opinion in Boerne with the majority opinion in O Centro. It clearly is. My question was whether it's possible to reconcile Stevens's positions in those two cases. Stevens's concurrence in Boerne does not rely on separation of powers or federalism, so it leaves unexplained why RFRA isn't an establishment clause violation as applied to the federal government. I'm drawn to Doug Laycock's theory that Stevens just didn't think it through in Boerne.
-----Original Message----- From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene Sent: Monday, April 11, 2011 5:12 PM To: hamilto...@aol.com; Law & Religion issues for Law Academics Subject: RE: A John Paul Stevens Puzzle I'm with Dan on the supposed separation of powers question; as I read the opinion, the Court simply holds that Congress lacks the enumerated power to impose its view of the proper reading of the Free Exercise Clause on the states. It's therefore not surprising, I think, that Cutter v. Wilkinson didn't note any such objections in a case where Congress had an adequate enumerated power hook. Eugene > -----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 2:55 PM > To: Law & Religion issues for Law Academics > Subject: Re: A John Paul Stevens Puzzle > > 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 > _______________________________________________ > 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. > > _______________________________________________ > 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. > _______________________________________________ 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. _______________________________________________ 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.
