Yes, Doug, we have different interpretations of Locke v. Davey. We always seem to land on the opposite side of these issues. That could be why you represent churches and I represent their victims. My so-called "frenetic rate of posting" was prompted by specific questions put to me by fellow listmembers. While it has been an interesting exchange, there is no obligation for you to keep up.
Marci
I actually have a day job and have no intention of responding to Marci's frenetic rate of posting. She may be right about where the Court will some day go, just as she was right about the shift of direction in Boerne. (She will respond that there was no shift, but in fact her brief was based almost entirely on dissenting opinions.) I will respond once to some of her more extravagant claims, and then go back to work.
Hr reading of Locke is mostly imagination, and her accounts of RLUIPA become wilder and wilder over time. It seems to me self-evident that Locke is a funding case, that funding cases have always been special, that this was not just any funding case but a case about funding the training of clergy, and that it predicts nothing about cases involving burdensome regulation with a scope of less than general applicability, or with only arguably general applicability. Locke could have been decided the other way; I helped with Tom Berg's brief urging that it be decided the other way. But it was the wrong case, reaching much too far, brought much too soon after Zelman. It may well lead to holdings that states do not have to equally fund any religious provision of services; Rosenberger may be confined to speech cases. But Locke is not about regulation. It is elementary first-year case reading that there was no regulation issue in the case.
What Rehnquist actually says is:
"It [the Washington law] imposes neither criminal nor civil sanctions on any type of religious service or rite. . . . [W]e can think of few areas in which a State's antiestablishment interests come more into play. Since the founding of our country, there have been popular uprisings against procuring taxpayer funds to support church leaders, which was one of the hallmarks of an `established' religion. . . . Most States that sought to avoid an establishm0ent of religion around the time of the founding placed in their constitutions formal prohibitions against using tax funds to support the ministry."
And in his concluding paragraph:
"The State's interest in not funding the pursuit of devotional degrees is substantial and the exclusions of such funding places a relatively minor burden on Promise Scholars. If any room exists between the two Religion Clauses, it must be here. We need not venture further into this difficult area in order to uphold the Promise Scholarship Program as currently operated by the State of Washington."
The second and third to last paragraphs are about animus, and they say there is not any. This is after all the talk about the long tradition of not funding the clergy. The implication seems to be that if there were animus, that might matter even in a case about not funding the clergy, but that issue is not presented. Marci wants to read those paragraphs as implying that animus is always required, no matter the facts, and whether or not funding the clergy is at issue. Obviously, that is at most an implication, and if implied, the wildest sort of dicta. To draw her implication, you have to treat everything he said about funding the clergy as utterly irrelevant to the opinion. Read the two paragraphs for yourself, but I don't think her reading is implied at all.
There is a subordinate clause introducing the animus paragraphs: "Far from evincing the hostility toward religion which was manifest in Lukumi .. .", which tells us what we already knew -- that the facts of Lukumi can be interpreted in terms of animus. Marci's side will quote that phrase from here to Kingdom come, but cases are not overruled or reinterpreted in such passing references. In Smith, the Court cited with apparent approval the district court's opinion in Lukumi. People told me the Court had already decided Lukumi before we filed the cert petition. I said we might win or we might lose, but the last thing I was worried about was that the Court might feel bound by a passing citation in rank dictum to the district court's opinion. It remains the case that there is an animus section in the Lukumi opinion, and that section got only two votes. Someone on each side will have to argue the competing interpretations of Lukumi down the road; it was not decided in Locke.
As to RLUIPA, it is not true that there is always a place to worship. Marci's claim that every municipality provides a place for churches is simply false. The hearing record has a survey of suburbs in northern Cook County (Chicago); in 22 of them, I think, there was no place to put a new church. Don't think just of the established churches who acquired their sites and raised their buildings
