Re: I would not have enacted this statute - Justice Scalia on RLUIPA
I'm a bit bewildered by Scalia's comment and the substantive reactions to it. Why in the world is a Justice telling us what he would have voted for as a Member of Congress, when that's not his role in the government? Perhaps he would not have voted for the NLRA or the APA either; should that affect the way he decides labor law or ad law questions under those Acts? There is a profound separation of powers problem screaming out from this comment. Or am I just being a hopeless and quaint naïf, believing that judges interpret the statutes enacted by other branches (even when the statutes build on prior judge-made doctrines) without regard to the judge's view of their legislative merits? Scalia (and all the rest) certainly have developed views of the compelling interest test, but that is quite irrelevant to whether they would vote to enact that test as legislation.. So what exactly is Scalia telling us to bear in mind? On Sat, Oct 18, 2014 at 4:44 PM, James Oleske jole...@lclark.edu wrote: I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was struck a moment ago by this comment from Justice Scalia while discussing compelling state interest standard with the Assistant SG: We’re talking here about a compelling State interest. *Bear in mind I would not have enacted this statute, but there it is.* It says there has to be a compelling State interest. And you’re you’re asking, well, let’s balance things; let’s be reasonable. Compelling State interest is not a reasonableness test at all. A quick Google search indicates that one of the only places this comment has gotten attention is over on Josh Blackmun's blog http://joshblackman.com/blog/2014/10/08/justice-scalia-would-not-have-enacted-rluipa-what-about-rfra/ : Is that not significant? He wouldn’t have voted for RLUIPA. Recall that he did write Smith. If so, would he also not have voted for RFRA, as applied to the federal government (put aside the federalism problems)? That makes his [joining the Court's] opinion in Hobby Lobby so much more significant. In answer to Josh's second question, I tend to think Justice Scalia would not have voted for RFRA. Recall, he rejected application of the compelling interest test in Smith in part because he viewed it as horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice - Jim http://ssrn.com/author=357864 ___ 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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 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 ___ 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.
Re: I would not have enacted this statute - Justice Scalia on RLUIPA
I don't share Chip's seeming consternation. Is this any different from references to an unusually stupid law (Stewart as I recall in Griswold, though it might have been Black, who also distanced himself) or Thomas in Lawrence or, for that matter, Holmes in Lochner, depending on whether one thinks that he found New York's law tyrannical? How is this different from expressing great admiration for a given part of the Constitution instead of simply saying my job is to enforce its commands even if I consider them stupid or even pernicious? Scalia should get a pass on this one. Sandy Sent from my iPhone On Oct 19, 2014, at 7:37 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I'm a bit bewildered by Scalia's comment and the substantive reactions to it. Why in the world is a Justice telling us what he would have voted for as a Member of Congress, when that's not his role in the government? Perhaps he would not have voted for the NLRA or the APA either; should that affect the way he decides labor law or ad law questions under those Acts? There is a profound separation of powers problem screaming out from this comment. Or am I just being a hopeless and quaint na?f, believing that judges interpret the statutes enacted by other branches (even when the statutes build on prior judge-made doctrines) without regard to the judge's view of their legislative merits? Scalia (and all the rest) certainly have developed views of the compelling interest test, but that is quite irrelevant to whether they would vote to enact that test as legislation.. So what exactly is Scalia telling us to bear in mind? On Sat, Oct 18, 2014 at 4:44 PM, James Oleske jole...@lclark.edumailto:jole...@lclark.edu wrote: I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was struck a moment ago by this comment from Justice Scalia while discussing compelling state interest standard with the Assistant SG: We're talking here about a compelling State interest. Bear in mind I would not have enacted this statute, but there it is. It says there has to be a compelling State interest. And you're you're asking, well, let's balance things; let's be reasonable. Compelling State interest is not a reasonableness test at all. A quick Google search indicates that one of the only places this comment has gotten attention is over on Josh Blackmun's bloghttp://joshblackman.com/blog/2014/10/08/justice-scalia-would-not-have-enacted-rluipa-what-about-rfra/: Is that not significant? He wouldn't have voted for RLUIPA. Recall that he did write Smith. If so, would he also not have voted for RFRA, as applied to the federal government (put aside the federalism problems)? That makes his [joining the Court's] opinion in Hobby Lobby so much more significant. In answer to Josh's second question, I tend to think Justice Scalia would not have voted for RFRA. Recall, he rejected application of the compelling interest test in Smith in part because he viewed it as horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice - Jim http://ssrn.com/author=357864 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 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 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. ___ 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
RE: I would not have enacted this statute - Justice Scalia on RLUIPA
Standing a few feet in front of him when he said what he did gives me no special insight into what he meant or why he said it. But I took him to be making Chips point its my job to interpret and enforce this statute no matter what I think of it. He seemed to me to be emphasizing the separation of powers rather than negating it and also saying that we shouldnt blame him for any untoward results. And as Sandy says, there is a substantial tradition of such judicial comments. Judicial reluctance to enforce this statute at all has been a bigger problem than untoward results. But thats a different issue. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Levinson, Sanford V Sent: Sunday, October 19, 2014 3:19 PM To: Law Religion issues for Law Academics Subject: Re: I would not have enacted this statute - Justice Scalia on RLUIPA I don't share Chip's seeming consternation. Is this any different from references to an unusually stupid law (Stewart as I recall in Griswold, though it might have been Black, who also distanced himself) or Thomas in Lawrence or, for that matter, Holmes in Lochner, depending on whether one thinks that he found New York's law tyrannical? How is this different from expressing great admiration for a given part of the Constitution instead of simply saying my job is to enforce its commands even if I consider them stupid or even pernicious? Scalia should get a pass on this one. Sandy Sent from my iPhone On Oct 19, 2014, at 7:37 PM, Ira Lupu icl...@law.gwu.edu mailto:icl...@law.gwu.edu wrote: I'm a bit bewildered by Scalia's comment and the substantive reactions to it. Why in the world is a Justice telling us what he would have voted for as a Member of Congress, when that's not his role in the government? Perhaps he would not have voted for the NLRA or the APA either; should that affect the way he decides labor law or ad law questions under those Acts? There is a profound separation of powers problem screaming out from this comment. Or am I just being a hopeless and quaint naïf, believing that judges interpret the statutes enacted by other branches (even when the statutes build on prior judge-made doctrines) without regard to the judge's view of their legislative merits? Scalia (and all the rest) certainly have developed views of the compelling interest test, but that is quite irrelevant to whether they would vote to enact that test as legislation.. So what exactly is Scalia telling us to bear in mind? On Sat, Oct 18, 2014 at 4:44 PM, James Oleske jole...@lclark.edu mailto:jole...@lclark.edu wrote: I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was struck a moment ago by this comment from Justice Scalia while discussing compelling state interest standard with the Assistant SG: Were talking here about a compelling State interest. Bear in mind I would not have enacted this statute, but there it is. It says there has to be a compelling State interest. And youre youre asking, well, lets balance things; lets be reasonable. Compelling State interest is not a reasonableness test at all. A quick Google search indicates that one of the only places this comment has gotten attention is over on Josh Blackmun's blog http://joshblackman.com/blog/2014/10/08/justice-scalia-would-not-have-enact ed-rluipa-what-about-rfra/ : Is that not significant? He wouldnt have voted for RLUIPA. Recall that he did write Smith. If so, would he also not have voted for RFRA, as applied to the federal government (put aside the federalism problems)? That makes his [joining the Court's] opinion in Hobby Lobby so much more significant. In answer to Josh's second question, I tend to think Justice Scalia would not have voted for RFRA. Recall, he rejected application of the compelling interest test in Smith in part because he viewed it as horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice - Jim ___ 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 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 (202)994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious
Re: I would not have enacted this statute - Justice Scalia on RLUIPA
Recall Scalia's basic account in Smith, to wit: We've been making noises since 1964 about compelling interests and narrow tailoring, but come on . . . of course we didn't really mean it: We've been hypocrites, using the language of strict scrutiny but in fact applying nothing of the sort. And we'd be wrong to apply it, since that would allow religious believers to be laws unto themselves. If we actually applied strict scrutiny, it would lead to results that everyone would agree are absurd and not compelled by the Constitution. And Scalia is now saying -- as do at least four, perhaps five, Justices in Hobby Lobby -- that Congress has instructed us to do that which we had never done pre-Smith, i.e., actually apply strict scrutiny. I warned you that that would be ridiculous and lead to convulsive, absurd results; but you ignored me, and the legislature was stupid enough to invoke the language we had used, not the doctrine we had been applying in fact. If you really wanted to re-instantiate the jurisprudence as it existed pre-Smith, you should have chosen much different language. On Sun, Oct 19, 2014 at 3:18 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I don't share Chip's seeming consternation. Is this any different from references to an unusually stupid law (Stewart as I recall in Griswold, though it might have been Black, who also distanced himself) or Thomas in Lawrence or, for that matter, Holmes in Lochner, depending on whether one thinks that he found New York's law tyrannical? How is this different from expressing great admiration for a given part of the Constitution instead of simply saying my job is to enforce its commands even if I consider them stupid or even pernicious? Scalia should get a pass on this one. Sandy Sent from my iPhone On Oct 19, 2014, at 7:37 PM, Ira Lupu icl...@law.gwu.edu wrote: I'm a bit bewildered by Scalia's comment and the substantive reactions to it. Why in the world is a Justice telling us what he would have voted for as a Member of Congress, when that's not his role in the government? Perhaps he would not have voted for the NLRA or the APA either; should that affect the way he decides labor law or ad law questions under those Acts? There is a profound separation of powers problem screaming out from this comment. Or am I just being a hopeless and quaint naïf, believing that judges interpret the statutes enacted by other branches (even when the statutes build on prior judge-made doctrines) without regard to the judge's view of their legislative merits? Scalia (and all the rest) certainly have developed views of the compelling interest test, but that is quite irrelevant to whether they would vote to enact that test as legislation.. So what exactly is Scalia telling us to bear in mind? On Sat, Oct 18, 2014 at 4:44 PM, James Oleske jole...@lclark.edu wrote: I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was struck a moment ago by this comment from Justice Scalia while discussing compelling state interest standard with the Assistant SG: We’re talking here about a compelling State interest. *Bear in mind I would not have enacted this statute, but there it is.* It says there has to be a compelling State interest. And you’re you’re asking, well, let’s balance things; let’s be reasonable. Compelling State interest is not a reasonableness test at all. A quick Google search indicates that one of the only places this comment has gotten attention is over on Josh Blackmun's blog http://joshblackman.com/blog/2014/10/08/justice-scalia-would-not-have-enacted-rluipa-what-about-rfra/ : Is that not significant? He wouldn’t have voted for RLUIPA. Recall that he did write Smith. If so, would he also not have voted for RFRA, as applied to the federal government (put aside the federalism problems)? That makes his [joining the Court's] opinion in Hobby Lobby so much more significant. In answer to Josh's second question, I tend to think Justice Scalia would not have voted for RFRA. Recall, he rejected application of the compelling interest test in Smith in part because he viewed it as horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice - Jim http://ssrn.com/author=357864 ___ 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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW
Re: I would not have enacted this statute - Justice Scalia on RLUIPA
I think that both Doug and Marty are right in their analyses. And, for the record, it was an uncommonly silly law. Sandy Sent from my iPhone On Oct 19, 2014, at 8:46 PM, Marty Lederman lederman.ma...@gmail.commailto:lederman.ma...@gmail.com wrote: Recall Scalia's basic account in Smith, to wit: We've been making noises since 1964 about compelling interests and narrow tailoring, but come on . . . of course we didn't really mean it: We've been hypocrites, using the language of strict scrutiny but in fact applying nothing of the sort. And we'd be wrong to apply it, since that would allow religious believers to be laws unto themselves. If we actually applied strict scrutiny, it would lead to results that everyone would agree are absurd and not compelled by the Constitution. And Scalia is now saying -- as do at least four, perhaps five, Justices in Hobby Lobby -- that Congress has instructed us to do that which we had never done pre-Smith, i.e., actually apply strict scrutiny. I warned you that that would be ridiculous and lead to convulsive, absurd results; but you ignored me, and the legislature was stupid enough to invoke the language we had used, not the doctrine we had been applying in fact. If you really wanted to re-instantiate the jurisprudence as it existed pre-Smith, you should have chosen much different language. On Sun, Oct 19, 2014 at 3:18 PM, Levinson, Sanford V slevin...@law.utexas.edumailto:slevin...@law.utexas.edu wrote: I don't share Chip's seeming consternation. Is this any different from references to an unusually stupid law (Stewart as I recall in Griswold, though it might have been Black, who also distanced himself) or Thomas in Lawrence or, for that matter, Holmes in Lochner, depending on whether one thinks that he found New York's law tyrannical? How is this different from expressing great admiration for a given part of the Constitution instead of simply saying my job is to enforce its commands even if I consider them stupid or even pernicious? Scalia should get a pass on this one. Sandy Sent from my iPhone On Oct 19, 2014, at 7:37 PM, Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu wrote: I'm a bit bewildered by Scalia's comment and the substantive reactions to it. Why in the world is a Justice telling us what he would have voted for as a Member of Congress, when that's not his role in the government? Perhaps he would not have voted for the NLRA or the APA either; should that affect the way he decides labor law or ad law questions under those Acts? There is a profound separation of powers problem screaming out from this comment. Or am I just being a hopeless and quaint naïf, believing that judges interpret the statutes enacted by other branches (even when the statutes build on prior judge-made doctrines) without regard to the judge's view of their legislative merits? Scalia (and all the rest) certainly have developed views of the compelling interest test, but that is quite irrelevant to whether they would vote to enact that test as legislation.. So what exactly is Scalia telling us to bear in mind? On Sat, Oct 18, 2014 at 4:44 PM, James Oleske jole...@lclark.edumailto:jole...@lclark.edu wrote: I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was struck a moment ago by this comment from Justice Scalia while discussing compelling state interest standard with the Assistant SG: We’re talking here about a compelling State interest. Bear in mind I would not have enacted this statute, but there it is. It says there has to be a compelling State interest. And you’re you’re asking, well, let’s balance things; let’s be reasonable. Compelling State interest is not a reasonableness test at all. A quick Google search indicates that one of the only places this comment has gotten attention is over on Josh Blackmun's bloghttp://joshblackman.com/blog/2014/10/08/justice-scalia-would-not-have-enacted-rluipa-what-about-rfra/: Is that not significant? He wouldn’t have voted for RLUIPA. Recall that he did write Smith. If so, would he also not have voted for RFRA, as applied to the federal government (put aside the federalism problems)? That makes his [joining the Court's] opinion in Hobby Lobby so much more significant. In answer to Josh's second question, I tend to think Justice Scalia would not have voted for RFRA. Recall, he rejected application of the compelling interest test in Smith in part because he viewed it as horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice - Jim http://ssrn.com/author=357864 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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
Re: I would not have enacted this statute - Justice Scalia on RLUIPA
I appreciate the comments of others to the effect of I would not have enacted . . = stupid or silly. Note that the Supreme Court must take state law as the Court finds it, silly, stupid, or otherwise. But the Court has authority to interpret federal law. So perhaps we need a new maxim of statutory construction -- should it be stupid laws should be narrowly construed, to minimize their harm; i.e., compelling means something much less than it seems, as in pre-Smith law? Or should it be stupid laws should be broadly construed, to show Congress just how stupid its law really is; i.e., compelling means what some shallow law students might think it means, even if that overly empowers individuals against the state? On Sun, Oct 19, 2014 at 4:18 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I think that both Doug and Marty are right in their analyses. And, for the record, it was an uncommonly silly law. Sandy Sent from my iPhone On Oct 19, 2014, at 8:46 PM, Marty Lederman lederman.ma...@gmail.com wrote: Recall Scalia's basic account in Smith, to wit: We've been making noises since 1964 about compelling interests and narrow tailoring, but come on . . . of course we didn't really mean it: We've been hypocrites, using the language of strict scrutiny but in fact applying nothing of the sort. And we'd be wrong to apply it, since that would allow religious believers to be laws unto themselves. If we actually applied strict scrutiny, it would lead to results that everyone would agree are absurd and not compelled by the Constitution. And Scalia is now saying -- as do at least four, perhaps five, Justices in Hobby Lobby -- that Congress has instructed us to do that which we had never done pre-Smith, i.e., actually apply strict scrutiny. I warned you that that would be ridiculous and lead to convulsive, absurd results; but you ignored me, and the legislature was stupid enough to invoke the language we had used, not the doctrine we had been applying in fact. If you really wanted to re-instantiate the jurisprudence as it existed pre-Smith, you should have chosen much different language. On Sun, Oct 19, 2014 at 3:18 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I don't share Chip's seeming consternation. Is this any different from references to an unusually stupid law (Stewart as I recall in Griswold, though it might have been Black, who also distanced himself) or Thomas in Lawrence or, for that matter, Holmes in Lochner, depending on whether one thinks that he found New York's law tyrannical? How is this different from expressing great admiration for a given part of the Constitution instead of simply saying my job is to enforce its commands even if I consider them stupid or even pernicious? Scalia should get a pass on this one. Sandy Sent from my iPhone On Oct 19, 2014, at 7:37 PM, Ira Lupu icl...@law.gwu.edu wrote: I'm a bit bewildered by Scalia's comment and the substantive reactions to it. Why in the world is a Justice telling us what he would have voted for as a Member of Congress, when that's not his role in the government? Perhaps he would not have voted for the NLRA or the APA either; should that affect the way he decides labor law or ad law questions under those Acts? There is a profound separation of powers problem screaming out from this comment. Or am I just being a hopeless and quaint naïf, believing that judges interpret the statutes enacted by other branches (even when the statutes build on prior judge-made doctrines) without regard to the judge's view of their legislative merits? Scalia (and all the rest) certainly have developed views of the compelling interest test, but that is quite irrelevant to whether they would vote to enact that test as legislation.. So what exactly is Scalia telling us to bear in mind? On Sat, Oct 18, 2014 at 4:44 PM, James Oleske jole...@lclark.edu wrote: I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was struck a moment ago by this comment from Justice Scalia while discussing compelling state interest standard with the Assistant SG: We’re talking here about a compelling State interest. *Bear in mind I would not have enacted this statute, but there it is.* It says there has to be a compelling State interest. And you’re you’re asking, well, let’s balance things; let’s be reasonable. Compelling State interest is not a reasonableness test at all. A quick Google search indicates that one of the only places this comment has gotten attention is over on Josh Blackmun's blog http://joshblackman.com/blog/2014/10/08/justice-scalia-would-not-have-enacted-rluipa-what-about-rfra/ : Is that not significant? He wouldn’t have voted for RLUIPA. Recall that he did write Smith. If so, would he also not have voted for RFRA, as applied to the federal government (put aside the federalism problems)? That makes his [joining the Court's] opinion in
Re: I would not have enacted this statute - Justice Scalia on RLUIPA
The best way to get a bad law repealed is to enforce it strictly.” Abraham Lincoln On Oct 19, 2014, at 5:20 PM, Ira Lupu icl...@law.gwu.edu wrote: I appreciate the comments of others to the effect of I would not have enacted . . = stupid or silly. Note that the Supreme Court must take state law as the Court finds it, silly, stupid, or otherwise. But the Court has authority to interpret federal law. So perhaps we need a new maxim of statutory construction -- should it be stupid laws should be narrowly construed, to minimize their harm; i.e., compelling means something much less than it seems, as in pre-Smith law? Or should it be stupid laws should be broadly construed, to show Congress just how stupid its law really is; i.e., compelling means what some shallow law students might think it means, even if that overly empowers individuals against the state? -- Prof. Steven D. Jamar vox: 202-806-8017 Director of International Programs, Institute for Intellectual Property and Social Justice http://iipsj.org Howard University School of Law fax: 202-806-8567 http://sdjlaw.org But, Mousie, thou art no thy lane, In proving foresight may be vain; The best-laid schemes o’ mice an’ men Gang aft agley, An’ lea’e us nought but grief an’ pain, For promis’d joy! Robert Burns, 1785 ___ 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.
RE: I would not have enacted this statute - Justice Scalia on RLUIPA
For the record, the compelling interest test in pre-Smith free exercise cases was not so toothless as the conventional wisdom would have it. The Court had found a compelling interest in only three contexts in free-exercise cases: Gillette (raising an army), Lee and Hernandez (collecting taxes), and Bob Jones (racial equality in education). In each, reasons of self-interest or widespread prejudice threatened unmanageable numbers of claims, putting the broader interest at stake and not just a few exceptions at the margins of that interest. Goldman and O’Lone refused to apply the compelling interest test to military or prisons. Lyng and Roy found no burden on religious exercise. Whatever one thinks of these cases (I disagree with Goldman and O’Lone but find Lyng and Roy hard to argue with), they do not water down the compelling interest test. They never reach that issue. And then RFRA’s text says that the statute’s purpose is to restore the compelling interest test as set forth in Sherbert and Yoder, and no one claims it was watered down there. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Sunday, October 19, 2014 5:21 PM To: Law Religion issues for Law Academics Subject: Re: I would not have enacted this statute - Justice Scalia on RLUIPA I appreciate the comments of others to the effect of I would not have enacted . . = stupid or silly. Note that the Supreme Court must take state law as the Court finds it, silly, stupid, or otherwise. But the Court has authority to interpret federal law. So perhaps we need a new maxim of statutory construction -- should it be stupid laws should be narrowly construed, to minimize their harm; i.e., compelling means something much less than it seems, as in pre-Smith law? Or should it be stupid laws should be broadly construed, to show Congress just how stupid its law really is; i.e., compelling means what some shallow law students might think it means, even if that overly empowers individuals against the state? -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 tel:%28202%29994-7053 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 ___ 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 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 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 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 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 (202)994-7053 Co-author (with Professor Robert Tuttle) of Secular Government, Religious People (
Re: I would not have enacted this statute - Justice Scalia on RLUIPA
Sandy, an unusually stupid law would have been priceless, but Stewart wrote an uncommonly silly law. Judy Sent from my iPhone On Oct 19, 2014, at 2:18 PM, Levinson, Sanford V slevin...@law.utexas.edu wrote: I don't share Chip's seeming consternation. Is this any different from references to an unusually stupid law (Stewart as I recall in Griswold, though it might have been Black, who also distanced himself) or Thomas in Lawrence or, for that matter, Holmes in Lochner, depending on whether one thinks that he found New York's law tyrannical? How is this different from expressing great admiration for a given part of the Constitution instead of simply saying my job is to enforce its commands even if I consider them stupid or even pernicious? Scalia should get a pass on this one. Sandy Sent from my iPhone On Oct 19, 2014, at 7:37 PM, Ira Lupu icl...@law.gwu.edu wrote: I'm a bit bewildered by Scalia's comment and the substantive reactions to it. Why in the world is a Justice telling us what he would have voted for as a Member of Congress, when that's not his role in the government? Perhaps he would not have voted for the NLRA or the APA either; should that affect the way he decides labor law or ad law questions under those Acts? There is a profound separation of powers problem screaming out from this comment. Or am I just being a hopeless and quaint naïf, believing that judges interpret the statutes enacted by other branches (even when the statutes build on prior judge-made doctrines) without regard to the judge's view of their legislative merits? Scalia (and all the rest) certainly have developed views of the compelling interest test, but that is quite irrelevant to whether they would vote to enact that test as legislation.. So what exactly is Scalia telling us to bear in mind? On Sat, Oct 18, 2014 at 4:44 PM, James Oleske jole...@lclark.edu wrote: I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was struck a moment ago by this comment from Justice Scalia while discussing compelling state interest standard with the Assistant SG: We’re talking here about a compelling State interest. Bear in mind I would not have enacted this statute, but there it is. It says there has to be a compelling State interest. And you’re you’re asking, well, let’s balance things; let’s be reasonable. Compelling State interest is not a reasonableness test at all. A quick Google search indicates that one of the only places this comment has gotten attention is over on Josh Blackmun's blog: Is that not significant? He wouldn’t have voted for RLUIPA. Recall that he did write Smith. If so, would he also not have voted for RFRA, as applied to the federal government (put aside the federalism problems)? That makes his [joining the Court's] opinion in Hobby Lobby so much more significant. In answer to Josh's second question, I tend to think Justice Scalia would not have voted for RFRA. Recall, he rejected application of the compelling interest test in Smith in part because he viewed it as horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice - Jim ___ 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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 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 ___ 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. ___ 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
Re: I would not have enacted this statute - Justice Scalia on RLUIPA
I would add that, from a practitioner's point of view, pre- Smith compelling interest was a large club to swing. It is less than clear to me that the correct metric for judging a rule of law is a small handful of Supreme Court ( or even published circuit court )opinions which are typically the very hardest cases. Marc Sent from my BlackBerry 10 smartphone on the Verizon Wireless 4G LTE network. From: Douglas Laycock Sent: Sunday, October 19, 2014 5:49 PM To: 'Law Religion issues for Law Academics' Reply To: Law Religion issues for Law Academics Subject: RE: I would not have enacted this statute - Justice Scalia on RLUIPA For the record, the compelling interest test in pre-Smith free exercise cases was not so toothless as the conventional wisdom would have it. The Court had found a compelling interest in only three contexts in free-exercise cases: Gillette (raising an army), Lee and Hernandez (collecting taxes), and Bob Jones (racial equality in education). In each, reasons of self-interest or widespread prejudice threatened unmanageable numbers of claims, putting the broader interest at stake and not just a few exceptions at the margins of that interest. Goldman and O’Lone refused to apply the compelling interest test to military or prisons. Lyng and Roy found no burden on religious exercise. Whatever one thinks of these cases (I disagree with Goldman and O’Lone but find Lyng and Roy hard to argue with), they do not water down the compelling interest test. They never reach that issue. And then RFRA’s text says that the statute’s purpose is to restore the compelling interest test as set forth in Sherbert and Yoder, and no one claims it was watered down there. Douglas Laycock Robert E. Scott Distinguished Professor of Law University of Virginia Law School 580 Massie Road Charlottesville, VA 22903 434-243-8546 From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Ira Lupu Sent: Sunday, October 19, 2014 5:21 PM To: Law Religion issues for Law Academics Subject: Re: I would not have enacted this statute - Justice Scalia on RLUIPA I appreciate the comments of others to the effect of I would not have enacted . . = stupid or silly. Note that the Supreme Court must take state law as the Court finds it, silly, stupid, or otherwise. But the Court has authority to interpret federal law. So perhaps we need a new maxim of statutory construction -- should it be stupid laws should be narrowly construed, to minimize their harm; i.e., compelling means something much less than it seems, as in pre-Smith law? Or should it be stupid laws should be broadly construed, to show Congress just how stupid its law really is; i.e., compelling means what some shallow law students might think it means, even if that overly empowers individuals against the state? -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053tel:%28202%29994-7053 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 ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. ___ To post, send message to Religionlaw@lists.ucla.edumailto: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. ___ To post, send message to Religionlaw@lists.ucla.edumailto:Religionlaw@lists.ucla.edu To subscribe, unsubscribe, change options,
Re: I would not have enacted this statute - Justice Scalia on RLUIPA
It still sounds like Chip still may be exercised (no pun intended) about Scalia’s comments. One need not take “I would not have enacted” so far as indicating stupidity or silliness; there are other ways short of that that something could be bad policy. Recall Justice O’Connor’s dissent in Gonzales v. Raich, wherein she asserted that “whether marijuana should be available to relieve severe pain and suffering” presented a “difficult and sensitive question.” She shares with the reader that If [she] were a California citizen, [she] would not have voted for the medical marijuana ballot initiative; if [she] were a California legislator [she] would not have supported the Compassionate Use Act.” She nowhere calls the resolution California adopted anything like stupid or silly, though her closing paragraph probably insinuates that she at least views it as unwise. But in her view, that did not affect the analysis of the federal Controlled Substances Act’s (un)constitutionality as applied there. So why do we need any different canon of interpretation just because federal law is involved? Fifth Amendment due process doctrine insists that Congress is as entitled as state legislatures are under the Fourteenth Amendment to deference to their policy decisions in ordinary cases. I am afraid I don’t see the merit in his interpretive suggestion. (Maybe we’d rather Justices kept silent about their legally irrelevant policy assessments, but maybe there is not a widely shared agreement about that.) David B. Cruz Professor of Law University of Southern California Gould School of Law Los Angeles, CA 90089-0071 U.S.A. From: Ira Lupu icl...@law.gwu.edumailto:icl...@law.gwu.edu Reply-To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Date: Sunday, October 19, 2014 at 2:20 PM To: Law Religion issues for Law Academics religionlaw@lists.ucla.edumailto:religionlaw@lists.ucla.edu Subject: Re: I would not have enacted this statute - Justice Scalia on RLUIPA I appreciate the comments of others to the effect of I would not have enacted . . = stupid or silly. Note that the Supreme Court must take state law as the Court finds it, silly, stupid, or otherwise. But the Court has authority to interpret federal law. So perhaps we need a new maxim of statutory construction -- should it be stupid laws should be narrowly construed, to minimize their harm; i.e., compelling means something much less than it seems, as in pre-Smith law? Or should it be stupid laws should be broadly construed, to show Congress just how stupid its law really is; i.e., compelling means what some shallow law students might think it means, even if that overly empowers individuals against the state? ___ 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.
RE: I would not have enacted this statute - Justice Scalia on RLUIPA
My first thought too was that Justice Scalia wouldn’t have voted for RFRA. But there’s another possibility I wanted to flag. It could be specifically about RLUIPA: Justice Scalia’s point was following a variant of the Chief’s reoccurring question about how much beard is too much and how to figure out a compelling-interest standard with prison deference, and then Justice Kagan’s point about dietary conditions in prison costing money and how much money is too much, especially given money for meals means prisons have less money for security. So Scalia could have just been thinking about prisons. I have no idea. I’ve made this point before on the listserv and I don’t want to beat a dead horse. But I’m not entirely persuaded of the view that strict scrutiny has some inherent meaning. That’s the view Scalia takes in Smith, of course. But there seem to be at least a few contexts where that’s not true. Off the top of my head: The Roberts v. Jaycees line of cases before Dale, and Grutter/Gratz. It seems to me that this “essentialism” argument has strong strategic elements. If you want strong results under RFRA/RLUIPA, you’ll argue that strict scrutiny necessarily has that Guntherian implication (“strict in theory, fatal in fact”). If you want RFRA/ RLUIPA weak, you’ll argue the “sensible balances” and deference language. Of course that’s when the argument is over interpretation. When the argument is about constitutionality, the positions flip. In Cutter v. Wilkinson, it was those opposed to RLUIPA who argued for its strength—they took the essentialist/Guntherian view because it was the most likely path to invalidation. And, of course, the flipside was equally true: Cutter also saw those in favor of RLUIPA argue for its weakness—because a weaker RLUIPA would be easier to defend. (And then the positions flip in Hobby Lobby.) We did Cutter in class this term. A student asked if the Supreme Court would ever hold RLUIPA unconstitutional as applied. I said it’s theoretically possible, but practically impossible. Exemptions can violate the Establishment Clause, to be sure. But a court that thinks a particular exemption violates the Establishment Clause will simply say that RLUIPA doesn’t require it in the first place. (Unless, of course, the court wants to hold RLUIPA unconstitutional.) I guess this reveals my anti-essentialism, but was I wrong? Best, Chris ___ Christopher C. Lund Associate Professor of Law Wayne State University Law School 471 West Palmer St. Detroit, MI 48202 l...@wayne.edu (313) 577-4046 (phone) (313) 577-9016 (fax) Website—http://law.wayne.edu/profile/christopher.lund/ Papers—http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 On Sat, Oct 18, 2014 at 4:44 PM, James Oleske jole...@lclark.edu wrote: I'm listening to the replay of the Holt v. Hobbs argument on CSPAN, and was struck a moment ago by this comment from Justice Scalia while discussing compelling state interest standard with the Assistant SG: We’re talking here about a compelling State interest. Bear in mind I would not have enacted this statute, but there it is. It says there has to be a compelling State interest. And you’re you’re asking, well, let’s balance things; let’s be reasonable. Compelling State interest is not a reasonableness test at all. A quick Google search indicates that one of the only places this comment has gotten attention is over on Josh Blackmun's blog http://joshblackman.com/blog/2014/10/08/justice-scalia-would-not-have-enacted-rluipa-what-about-rfra/ : Is that not significant? He wouldn’t have voted for RLUIPA. Recall that he did write Smith. If so, would he also not have voted for RFRA, as applied to the federal government (put aside the federalism problems)? That makes his [joining the Court's] opinion in Hobby Lobby so much more significant. In answer to Josh's second question, I tend to think Justice Scalia would not have voted for RFRA. Recall, he rejected application of the compelling interest test in Smith in part because he viewed it as horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice - Jim ___ 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. -- Ira C. Lupu F. Elwood Eleanor Davis Professor of Law, Emeritus George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 Co-author (with Professor Robert Tuttle) of
