I'm still not sure I understand. Let's say Justice Scalia thinks -- as
seems quite plausible -- that the Free Exercise Clause is best interpreted as
not securing religious exemptions. And let's say that he also thinks, as is
also quite possible, that (1) there's no constitutional bar to Congress's
providing by statute what the Free Exercise Clause does not itself provide, (2)
it's not for secular courts to second-guess claimants' sincere claims that the
law violates their religious beliefs, based on a judgment that those beliefs
are based on too "tenuous" causal connections, and (3) the proposed exemption
doesn't interfere with the rights and freedoms of others. I can't really see
how it would be proper for him to take a different approach because he wants
people to "take a more nuanced view of him" or because he wants to "convic[e]
people that the Supreme Court deserves respect."
Now of course if there's a sound substantive argument for why, for
instance, RFRA is unconstitutional, then by hypothesis Justice Scalia should be
persuaded by it. But what would that argument be?
Eugene
> -----Original Message-----
> From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
> boun...@lists.ucla.edu] On Behalf Of mallamud
> Sent: Sunday, June 08, 2014 9:44 AM
> To: religionlaw@lists.ucla.edu
> Subject: RE: Hobby Lobby/Ellen Katz
>
> People with whom I speak view Justice Scalia as a staunch conservative.
> They also associate deference to religion as a conservative position.
> If Scalia were to use what he obviously knows from his decision in Smith to
> deny
> religious exemptions based on tenuous connections where they interfere with
> the rights and freedoms of others, I think some people might take a more
> nuanced view of him. One small step in convincing people that the Supreme
> Court deserves respect because the Justices decide based on their best
> judgment
> of the good of the country and not on preconceived liberal or conservative
> biases. [Sub-point: Just as Scalia pointed to the wildly overwhelming
> majority by
> which Sec. 5 of the VRA was extended for 25 years, I feel that one reason for
> the
> enactment or RFRA, again, an overwhelming majority, stemmed from liberals'
> dislike of Scalia. Clearly not suitable as a decisional factor, but it
> undermines the
> statute in my personal opinion.]
>
> Jon
>
> On 2014-06-08 12:24, Volokh, Eugene wrote:
> > I appreciate the general concerns raised in Jon Mallamud's post -- but
> > I just don't see how items 1 to 5 lead to the conclusion in item
> > 6
> > about Hobby Lobby. Could you elaborate, please, why it would not be
> > "wis[e]" for Justice Scalia to view RFRA as constitutional as to
> > federal laws, and as justifying Hobby Lobby's claims in this case?
> > The conclusion that the standard rejected in Smith is an unsound
> > interpretation of the Free Exercise Clause doesn't obviously mean that
> > Congress lacks the power to implement such a standard in a statute.
> > Maybe that is ultimately the correct conclusion, but I think that it
> > needs some more justification.
> >
> > Eugene
> >
> > Jon Mallamud writes:
> >
> >> 6. I find that the reasons behind Employment Division v. Smith
> >> (which I have come to believe stated the best rule) apply to the
> >> evils of using the standard rejected in Smith in applying all federal
> >> statutes. So in Hobby Lobby I would like to see Justice Scalia find
> >> a way to apply his wisdom rather than his past predilection to
> >> enforce statutes no matter what the result. I was upset when he
> >> failed to enforce limits to the Commerce Clause in extending federal
> >> law to state authorization of the use of medical marijuana. Perhaps
> >> some day I will get to see why he did that and come to appreciate his
> >> view as I have his views in Smith.
> > _______________________________________________
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