I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was struck a moment ago by this comment from Justice Scalia while discussing "compelling state interest" standard with the Assistant SG:
"We’re talking here about a compelling State interest. *Bear in mind I would not have enacted this statute, but there it is.* It says there has to be a compelling State interest. And you’re you’re asking, well, let’s balance things; let’s be reasonable. Compelling State interest is not a reasonableness test at all." A quick Google search indicates that one of the only places this comment has gotten attention is over on Josh Blackmun's blog <http://joshblackman.com/blog/2014/10/08/justice-scalia-would-not-have-enacted-rluipa-what-about-rfra/> : "Is that not significant? He wouldn’t have voted for RLUIPA. Recall that he did write Smith. If so, would he also not have voted for RFRA, as applied to the federal government (put aside the federalism problems)? That makes his [joining the Court's] opinion in Hobby Lobby so much more significant." In answer to Josh's second question, I tend to think Justice Scalia would not have voted for RFRA. Recall, he rejected application of the compelling interest test in Smith in part because he viewed it as "horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice" - Jim <http://ssrn.com/author=357864>
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