My first thought too was that Justice Scalia wouldn’t have voted for RFRA. But there’s another possibility I wanted to flag. It could be specifically about RLUIPA: Justice Scalia’s point was following a variant of the Chief’s reoccurring question about how much beard is too much and how to figure out a compelling-interest standard with prison deference, and then Justice Kagan’s point about dietary conditions in prison costing money and how much money is too much, especially given money for meals means prisons have less money for security. So Scalia could have just been thinking about prisons. I have no idea.
I’ve made this point before on the listserv and I don’t want to beat a dead horse. But I’m not entirely persuaded of the view that strict scrutiny has some inherent meaning. That’s the view Scalia takes in Smith, of course. But there seem to be at least a few contexts where that’s not true. Off the top of my head: The Roberts v. Jaycees line of cases before Dale, and Grutter/Gratz. It seems to me that this “essentialism” argument has strong strategic elements. If you want strong results under RFRA/RLUIPA, you’ll argue that strict scrutiny necessarily has that Guntherian implication (“strict in theory, fatal in fact”). If you want RFRA/ RLUIPA weak, you’ll argue the “sensible balances” and deference language. Of course that’s when the argument is over interpretation. When the argument is about constitutionality, the positions flip. In Cutter v. Wilkinson, it was those opposed to RLUIPA who argued for its strength—they took the essentialist/Guntherian view because it was the most likely path to invalidation. And, of course, the flipside was equally true: Cutter also saw those in favor of RLUIPA argue for its weakness—because a weaker RLUIPA would be easier to defend. (And then the positions flip in Hobby Lobby.) We did Cutter in class this term. A student asked if the Supreme Court would ever hold RLUIPA unconstitutional as applied. I said it’s theoretically possible, but practically impossible. Exemptions can violate the Establishment Clause, to be sure. But a court that thinks a particular exemption violates the Establishment Clause will simply say that RLUIPA doesn’t require it in the first place. (Unless, of course, the court wants to hold RLUIPA unconstitutional.) I guess this reveals my anti-essentialism, but was I wrong? Best, Chris ___________________________ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 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 _______________________________________________ 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.
