Eugene,
I agree that "it would [not] be proper for him to take a different
approach because he wants people to "take a more nuanced view of him"
or because he wants to "convic[e] people that the Supreme Court
deserves respect."
Judges must make decisions based on their best judgment without
regard to whether people would like them. It is for law professors,
lawyers and others to evaluate decisions. I do think there is an
obligation for legally trained people to defend as well as criticize the
Supreme Court and I believe that given the partisanship that may tear
our country apart, the time to do so is now. I also do not believe
Justices must stick to the views they had before they were appointed.
They need to reevaluate those views in the light of changed
circumstances and the broader perspective from the view from the highest
court.
Thus, I just hope he sees the problem as he did in Smith and weighs
that against a statute that, if interpreted broadly, would go against
the policy of the free speech clauses: to let people of many different
views to live together in harmony. The application of strict scrutiny
to protect all religious views would be extremely disruptive.
I believe based on arguments Marci makes that RFRA is
unconstitutional, but despite her brief, I do not think that that is at
issue in Hobby Lobby.
Jon
On 2014-06-08 12:58, Volokh, Eugene wrote:
I'm still not sure I understand. Let's say Justice Scalia thinks --
as seems quite plausible -- that the Free Exercise Clause is best
interpreted as not securing religious exemptions. And let's say that
he also thinks, as is also quite possible, that (1) there's no
constitutional bar to Congress's providing by statute what the Free
Exercise Clause does not itself provide, (2) it's not for secular
courts to second-guess claimants' sincere claims that the law
violates
their religious beliefs, based on a judgment that those beliefs are
based on too "tenuous" causal connections, and (3) the proposed
exemption doesn't interfere with the rights and freedoms of others.
I
can't really see how it would be proper for him to take a different
approach because he wants people to "take a more nuanced view of him"
or because he wants to "convic[e] people that the Supreme Court
deserves respect."
Now of course if there's a sound substantive argument for why, for
instance, RFRA is unconstitutional, then by hypothesis Justice Scalia
should be persuaded by it. But what would that argument be?
Eugene
-----Original Message-----
From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-
boun...@lists.ucla.edu] On Behalf Of mallamud
Sent: Sunday, June 08, 2014 9:44 AM
To: religionlaw@lists.ucla.edu
Subject: RE: Hobby Lobby/Ellen Katz
People with whom I speak view Justice Scalia as a staunch
conservative.
They also associate deference to religion as a conservative
position.
If Scalia were to use what he obviously knows from his decision in
Smith to deny
religious exemptions based on tenuous connections where they
interfere with
the rights and freedoms of others, I think some people might take a
more
nuanced view of him. One small step in convincing people that the
Supreme
Court deserves respect because the Justices decide based on their
best judgment
of the good of the country and not on preconceived liberal or
conservative
biases. [Sub-point: Just as Scalia pointed to the wildly
overwhelming majority by
which Sec. 5 of the VRA was extended for 25 years, I feel that one
reason for the
enactment or RFRA, again, an overwhelming majority, stemmed from
liberals'
dislike of Scalia. Clearly not suitable as a decisional factor, but
it undermines the
statute in my personal opinion.]
Jon
On 2014-06-08 12:24, Volokh, Eugene wrote:
> I appreciate the general concerns raised in Jon Mallamud's post --
but
> I just don't see how items 1 to 5 lead to the conclusion in item
> 6
> about Hobby Lobby. Could you elaborate, please, why it would not
be
> "wis[e]" for Justice Scalia to view RFRA as constitutional as to
> federal laws, and as justifying Hobby Lobby's claims in this case?
> The conclusion that the standard rejected in Smith is an unsound
> interpretation of the Free Exercise Clause doesn't obviously mean
that
> Congress lacks the power to implement such a standard in a
statute.
> Maybe that is ultimately the correct conclusion, but I think that
it
> needs some more justification.
>
> Eugene
>
> Jon Mallamud writes:
>
>> 6. I find that the reasons behind Employment Division v.
Smith
>> (which I have come to believe stated the best rule) apply to the
>> evils of using the standard rejected in Smith in applying all
federal
>> statutes. So in Hobby Lobby I would like to see Justice Scalia
find
>> a way to apply his wisdom rather than his past predilection to
>> enforce statutes no matter what the result. I was upset when he
>> failed to enforce limits to the Commerce Clause in extending
federal
>> law to state authorization of the use of medical marijuana.
Perhaps
>> some day I will get to see why he did that and come to appreciate
his
>> view as I have his views in Smith.
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