I respectfully object to the term "committed originalist," (self-promoting articles omitted).
Kind of hoping you were being 100% saracastic. e Sent from my iPhone On Nov 22, 2016, at 5:26 PM, Ira Lupu <icl...@law.gwu.edu<mailto:icl...@law.gwu.edu>> wrote: No apologies necessary except for using Ira instead of Chip. In light of that request, you might reflect on how the committed originalist has not one word in Smith about the original meaning of the Free Exercise Clause. In 1991, I asked him about this when he came to GW to give a lecture, and he replied that the Court had to decide 100 cases a year so there was not enough time to do the historical research. I was stunned by that answer, which essentially said that the Justices lack the resources to do their job the way originalism requires it to be done. On Tue, Nov 22, 2016 at 5:17 PM Case, Mary Anne <mac...@law.uchicago.edu<mailto:mac...@law.uchicago.edu>> wrote: Sorry, Ira, was moved to ask about the deceased’s views in aid of a solicited piece on the jurisprudential views and rhetorical moves of the deceased (not RFRA specific views). From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Ira Lupu Sent: Tuesday, November 22, 2016 4:11 PM To: Law & Religion issues for Law Academics Subject: Re: Scalia's views of RFRA? There was no compelling interest test at the time of Reynolds, so being a law unto yourself would be the beginning and end of the game. RFRA adds a step to the game. And with all respect to the departed, I do not know why we should care what Justice Scalia thought about any subject on which he did not offer a view. Perhaps it was enough for him that a statute required him to do what he thought the Constitution did not. There are very, very few cases of legislatures cutting back on judicially recognized RFRA rights. You might look at my post- Hobby Lobby piece in Harv J of Law & Gender, where I discuss this in detail, On Tue, Nov 22, 2016 at 5:02 PM Case, Mary Anne <mac...@law.uchicago.edu<mailto:mac...@law.uchicago.edu>> wrote: From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Ira Lupu Sent: Tuesday, November 22, 2016 3:37 PM To: Law & Religion issues for Law Academics Subject: Re: Scalia's views of RFRA? The Scalia opinion in Smith of course did not anticipate a law like RFRA; instead, he was referencing practice-specific accommodations (like a peyote prohibition that exempted Native American Church members who used peyote in sacraments.) ---------- Agreed. That’s what led me to wonder to what extend RFRA might have upset him. -------------- Mary Anne, your comment has an excluded middle -- RFRA, as construed in Hobby Lobby, indeed makes "each conscience a law unto itself” with respect to what is burdensome to religious exercise. Nevertheless, judges still have to engage in "balancing" in light of RFRA's exception (re: whether application of the burden to the person furthers compelling governmental interests, and whether that is the least restrictive means to do so). But the "law unto itself" quality associated with RFRA's rule means that the government will very frequently have to satisfy that test, which Hobby Lobby made far stricter than the pre-Smith law ever had. So the balance seems highly tilted toward the government (though I strongly suspect it will not remain that way). ------------------------------ This may be a quibble or parsing too fine, but I take “law unto itself” here to mean what Reynolds does in using a similar phrase, that the secular law will let a person impelled by religion do as s/he pleases, so that not just the question of burden, but the whole ball of wax would be decided by the individual conscience. As to the rest of what you say, I may be confused, but when you say the balance is tilted toward government, I would have said away i.e. that narrow tailoring taken literally may be very hard for gov. to satisfy, which I agree is not an equilibrium situation. Whether it will be solved by courts watering down the standard without changing its verbiage or by legislatures selectively cutting back as Chris Lund has documented I’m less sure. On Tue, Nov 22, 2016 at 4:26 PM, Case, Mary Anne <mac...@law.uchicago.edu<mailto:mac...@law.uchicago.edu>> wrote: The quoted language comes directly from Scalia’s opinion in Smith. The full sentence is: ”It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.” There thus seem to be 2 typical Scalia desiderata in tension with one another – the desire for clear rules and the desire that the laws have democratic warrant. In the quoted sentence, he seems to be suggesting that sending accommodation back to the legislature will have the advantage of getting the courts out of the business of balancing, which he hated, but of course RFRA mandates precisely such balancing, unless it is read instead to “make each conscience a law unto itself.” From: religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu> [mailto:religionlaw-boun...@lists.ucla.edu<mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Steven Jamar Sent: Tuesday, November 22, 2016 3:20 PM To: Law Religion & Law List Subject: Re: Scalia's views of RFRA? I never read Smith that way — it was a straight up carte blanche to the legislative and executive branches provided the law was neutral and generally applicable — no weighing of competing interests involved. Steve -- Prof. Steven D. Jamar Assoc. Dir. of International Programs Institute for Intellectual Property and Social Justice http://iipsj.org<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fiipsj.org&data=01%7C01%7Cesegall%40gsu.edu%7C835dc57dbbad43101d3a08d4132694db%7C515ad73d8d5e4169895c9789dc742a70%7C0&sdata=HjhPI0VjhLQySuXTz84VY566JD5Nz01DsD0lGomE3nU%3D&reserved=0> http://sdjlaw.org<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fsdjlaw.org&data=01%7C01%7Cesegall%40gsu.edu%7C835dc57dbbad43101d3a08d4132694db%7C515ad73d8d5e4169895c9789dc742a70%7C0&sdata=jdKy46RGCeKNaeKAHRAL5pTGQFtK57tJCelI3N7oAQs%3D&reserved=0> "A life directed chiefly toward the fulfillment of personal desires sooner or later always leads to bitter disappointment." Albert Einstein On Nov 22, 2016, at 4:07 PM, Case, Mary Anne <mac...@law.uchicago.edu<mailto:mac...@law.uchicago.edu>> wrote: judges the task of “weigh[ing] the social importance of all laws against the centrality of all religious beliefs”(Smith) ________________________________ _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=01%7C01%7Cesegall%40gsu.edu%7C835dc57dbbad43101d3a08d4132694db%7C515ad73d8d5e4169895c9789dc742a70%7C0&sdata=NitsrYtyDR1pPDhUR3DFegFyL5N4TAWGKkHjrETa0jA%3D&reserved=0> 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. -- Ira C. Lupu F. Elwood & Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 301-928-9178 (mobile, preferred) 202-994-7053 (office) Co-author (with Professor Robert Tuttle) of "Secular Government, Religious People" ( Wm. B. Eerdmans Pub. Co., 2014)) My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Fpapers.ssrn.com%2Fsol3%2Fcf_dev%2FAbsByAuth.cfm%3Fper_id%3D181272%23reg&data=01%7C01%7Cesegall%40gsu.edu%7C835dc57dbbad43101d3a08d4132694db%7C515ad73d8d5e4169895c9789dc742a70%7C0&sdata=vJtcLpqPNdiz%2F6bkHPDReHMITzl7zVm%2FYAgP%2FOmAM%2BQ%3D&reserved=0> _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=01%7C01%7Cesegall%40gsu.edu%7C835dc57dbbad43101d3a08d4132694db%7C515ad73d8d5e4169895c9789dc742a70%7C0&sdata=NitsrYtyDR1pPDhUR3DFegFyL5N4TAWGKkHjrETa0jA%3D&reserved=0> 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. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw<https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=01%7C01%7Cesegall%40gsu.edu%7C835dc57dbbad43101d3a08d4132694db%7C515ad73d8d5e4169895c9789dc742a70%7C0&sdata=NitsrYtyDR1pPDhUR3DFegFyL5N4TAWGKkHjrETa0jA%3D&reserved=0> 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. _______________________________________________ To post, send message to Religionlaw@lists.ucla.edu<mailto:Religionlaw@lists.ucla.edu> To subscribe, unsubscribe, change options, or get password, see https://na01.safelinks.protection.outlook.com/?url=http%3A%2F%2Flists.ucla.edu%2Fcgi-bin%2Fmailman%2Flistinfo%2Freligionlaw&data=01%7C01%7Cesegall%40gsu.edu%7C835dc57dbbad43101d3a08d4132694db%7C515ad73d8d5e4169895c9789dc742a70%7C0&sdata=NitsrYtyDR1pPDhUR3DFegFyL5N4TAWGKkHjrETa0jA%3D&reserved=0 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.
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