Recall Scalia's basic account in Smith, to wit: We've been making noises since 1964 about "compelling interests" and "narrow tailoring," but come on . . . of course we didn't really mean it: We've been hypocrites, using the language of strict scrutiny but in fact applying nothing of the sort. And we'd be wrong to apply it, since that would allow religious believers to be "laws unto themselves." If we actually applied strict scrutiny, it would lead to results that everyone would agree are absurd and not compelled by the Constitution.
And Scalia is now saying -- as do at least four, perhaps five, Justices in Hobby Lobby -- that Congress has instructed us to do that which we had never done pre-Smith, i.e., actually apply strict scrutiny. I warned you that that would be ridiculous and lead to convulsive, absurd results; but you ignored me, and the legislature was stupid enough to invoke the language we had used, not the doctrine we had been applying in fact. If you really wanted to re-instantiate the jurisprudence as it existed pre-Smith, you should have chosen much different language. On Sun, Oct 19, 2014 at 3:18 PM, Levinson, Sanford V < slevin...@law.utexas.edu> wrote: > I don't share Chip's seeming consternation. Is this any different from > references to "an unusually stupid law" (Stewart as I recall in Griswold, > though it might have been Black, who also distanced himself) or Thomas in > Lawrence or, for that matter, Holmes in Lochner, depending on whether one > thinks that he found New York's law "tyrannical"? How is this different > from expressing great admiration for a given part of the Constitution > instead of simply saying "my job is to enforce its commands even if I > consider them stupid or even pernicious"? Scalia should get a pass on this > one. > > Sandy > > Sent from my iPhone > > On Oct 19, 2014, at 7:37 PM, Ira Lupu <icl...@law.gwu.edu> wrote: > > > I'm a bit bewildered by Scalia's comment and the substantive reactions > to it. Why in the world is a Justice telling us what he would have voted > for as a Member of Congress, when that's not his role in the government? > Perhaps he would not have voted for the NLRA or the APA either; should that > affect the way he decides labor law or ad law questions under those Acts? > There is a profound separation of powers problem screaming out from this > comment. > Or am I just being a hopeless and quaint naïf, believing that judges > interpret the statutes enacted by other branches (even when the statutes > build on prior judge-made doctrines) without regard to the judge's view of > their legislative merits? Scalia (and all the rest) certainly have > developed views of the compelling interest test, but that is quite > irrelevant to whether they would vote to enact that test as legislation.. > So what exactly is Scalia telling us to "bear in mind"? > On Sat, Oct 18, 2014 at 4:44 PM, James Oleske <jole...@lclark.edu> wrote: > >> 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> >> >> _______________________________________________ >> 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. >> > > > > -- > Ira C. Lupu > F. Elwood & Eleanor Davis Professor of Law, Emeritus > George Washington University Law School > 2000 H St., NW > Washington, DC 20052 > (202)994-7053 > Co-author (with Professor Robert Tuttle) of "Secular Government, Religious > People" ( Wm. B. Eerdmans Pub. Co., 2014)) > My SSRN papers are here: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg > > _______________________________________________ > 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.
