Perhaps, but Cutter v. Wilkinson did involve a square Establishment Clause challenge to RLUIPA, and yet Justice Stevens joined the Court's opinion upholding RLUIPA against such a challenge.
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of David Griffiths Sent: Monday, April 11, 2011 12:51 PM To: religionlaw list Subject: RE: A John Paul Stevens Puzzle Isn't part of the explanation for Stevens' apparently conflicting stances in Boerne and O Centro that: in the former case, the govt was trying to attack the constitutionality of RFRA as applied to the states, whereas in the latter the govt party chose not to attack the constitutionality of RFRA's application to a federal statute? The defendant hallucinogenic tea-drinking group obviosuly did not raise the EC issue either because RFRA was their best argument (although they surely could also have succeeded under Lukumi if they had taken the free exercise clause route?). Therefore the issue of RFRA's EC implications was presumably never even argued before the Supreme Court in O Centro. This made it easier (necessary?) for Stevens J to forget his dicta in Boerne. David David Griffiths PhD Candidate Faculty of Law University of Auckland New Zealand dh.griffi...@auckland.ac.nz<mailto:dh.griffi...@auckland.ac.nz>
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