There's this potentially troubling line in the Supreme Court's recent decision
in Ashcroft v. Iqbal (at least I find it potentially troubling) that I wanted
to raise with you all. Here's the passage:
The factors necessary to establish a Bivens violation will vary with the
constitutional
I think the alternative reading that Chris offers is the appropriate way to
understand this language. I don't think this language precludes an argument
that a law is not neutral or generally applicable without proving
discriminatory purpose. I actually thought this language was a plus for free
When would a law that's not neutral or not generally applicable not also be
intentionally discriminatory? Can a legislature negligently or
unknowingly enact a law that's not neutral or not generally applicable?
Art Spitzer
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Good question. There is certainly some range of opinions on whether a law that
requires a lot of individualized applications or exceptions is sufficiently
general for Smith purposes. Also, legislative accommodations of religion that
do not reach all faiths may not be intentionally
if the standard is the that legislature knows what it is doing, nothing
will ever be unconstitutional.
Marc
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein,
Alan
Sent: Wednesday, May 27, 2009 1:51 PM
Kennedy wrote Iqbal, and this sentence may well reflect his understanding of
Smith and Lukumi. But as Chris Lund noted, what he cites in the Lukumi opinion
is two pages on motive that only got two votes. Nine voted to strike the
ordinances down, but only two relied on evidence of motive.
That makes sense and does a lot to explain it. Although I'm still then a
little confused by the opinion. I mean if we agree that (1) Free Exercise
violations do not require a showing of bad motive (just a lack of general
applicability), and (2) Bivens liability does not require a showing of
To clarify Chris's point just a bit: In Iqbal, plaintiff argued that he was
mistreated because he was a Muslim. The government said it had nothing against
Muslims; it was jailing people suspected of terrorism, and unfortunately, that
group is disporportionately Muslim. So the parties set
