Being in a realist mood, is it possible that Scalia is just totally result oriented and says what he needs to say on a case-by-case basis to get where he wants to get? Just a hypothesis.
Paul Finkelman Quoting "Brownstein, Alan" <[EMAIL PROTECTED]>: > At least in free exercise and establishment clause cases, I have > never thought it was possible to reconcile what Justice Scalia says > in his various opinions. Compare his opinion in Employment Division > v. Smith with his dissenting opinion in Texas Monthly, one year > earlier. I thought his opinion in the Watchtower Bible Society case > was inconsistent with the hybrid rights language in Smith as well. > > Alan Brownstein > > ________________________________ > > From: [EMAIL PROTECTED] on behalf of David Cruz > Sent: Mon 2/18/2008 6:37 PM > To: Law & Religion issues for Law Academics > Subject: RE: Scalia and Motive > > > > Maybe his Kiryas Joel dissent accepts current EC doctrine arguendo, > though his preferred view (as revealed in his Lukumi and Edwards v. > Aguillard opinions) would render legislative motivation irrelevant in > cases of facially neutral laws? > > > > David B. Cruz > > Professor of Law > > University of Southern California Gould School of Law > > Los Angeles, CA 90089-0071 > > U.S.A. > > > > ________________________________ > > From: [EMAIL PROTECTED] > [mailto:[EMAIL PROTECTED] On Behalf Of Douglas > Laycock > Sent: Monday, February 18, 2008 6:13 PM > To: religionlaw@lists.ucla.edu > Subject: Scalia and Motive > > > > I just reread Kiryas Joel getting ready for class tomorrow. Scalia's > dissent insists that the law cannot be unconsitutional unless enacted > for a bad motive. I had somehow not focused on this before. This is > only a year after his Lukumi concurrence insisting that motive is > absolutely irrelevant. And of course there are similar opinions > earlier, such as his dissent in Edwards v. Aguillard. Does anyone > have a theory for reconciling his Kiryas Joel opinion with the rest? > > For those who want to refresh their recollections, here are the key > quotes from Kiryas Joel and Lukumi. Scalia both times. > > "In order to invalidate a facially neutral law, Justice Souter would > have to show not only that legislators were aware that religion > caused the problems addressed, but also that the legislature's > proposed solution was motivated by a desire to disadvantage or > benefit a religious group (i.e., to disadvantage or benefit them > because of their religion.)" > > "The First Amendment does not refer to the purposes for which > legislators enact laws, but to the effects of the laws enacted: > [quoting the Free Exercise Clause]. . . . This does not put us in > the business of invalidating laws by reason of the evil motives of > their authors. Had the Hialeah City Couoncil set out resolutely to > suppress the practices of Santeria, but ineptly adopted ordinances > that failed to do so, I do not see how those laws could be said to > "prohibi[t] the free exercise" of religion. Nor, in my view, does it > matter that a legislature consistes entirely of the pure-hearted, if > the law it enacts in fact singles out a religious practice for specia > burdens." > > > Douglas Laycock > Yale Kamisar Collegiate Professor of Law > University of Michigan Law School > 625 S. State St. > Ann Arbor, MI 48109-1215 > 734-647-9713 > > Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 Paul Finkelman President William McKinley Distinguished Professor of Law and Public Policy Albany Law School 80 New Scotland Avenue Albany, New York 12208-3494 518-445-3386 [EMAIL PROTECTED] _______________________________________________ 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.
