RE: Drift of the Court on religion
As to Justice White, perhaps his position is related to his authorship of Washington v. Davis, rejecting disparate impact test in another context. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, June 03, 2008 10:18 AM To: Law Religion issues for Law Academics Subject: Drift of the Court on religion I'm sure Justice Scalia is not credible to lots of people, just as any Justice is not credible to lots of people. But I take it the question should be whether his arguments about the Establishment Clause -- the question he seemed to be discussing -- are sound, a matter that is logically quite independent of whether one thinks his (and Justice Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the Free Exercise Clause was sound. Incidentally, speaking of the drift of the Court on religion -- has anyone studied why Justice White provided the fifth vote for the Smith majority? He did originally vote with Harlan in dissent in Sherbert v. Verner, but then seemed to accept the constitutionally compelled exemptions regime -- not joining, for instance, Rehnquist's and Stevens' expressions of skepticism on the subject -- and in Bowen v. Roy took the most pro-claimant view of any Justice. Yet in Smith he changed his view. Any thoughts on why he so concluded? Was he, for instance, persuaded by his thirty years of experience dealing with the constitutionally compelled exemptions regime that Scalia's critique was correct? Or did he always take the view that the regime was unsound and should be jettisoned at the first opportunity, but that while it continued it should be enforced relatively rigorously? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad Linda Sent: Tuesday, June 03, 2008 5:57 AM To: Law Religion issues for Law Academics Subject: Re: Scalia Decreis Drift of Court On Religion I'm not sure the author of the majority opinion in Employment Division V Smith is the most credible voice to criticize the Court's handling of religion. Brad Pardee - Original Message - From: Joel Sogol mailto:[EMAIL PROTECTED] To: Religionlaw mailto:religionlaw@lists.ucla.edu Sent: Monday, June 02, 2008 6:44 PM Subject: Scalia Decreis Drift of Court On Religion Scalia Decries Drift of Court On Religion - June 2, 2008 - The New York Sun http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion /79084/ ___ 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: Drift of the Court on religion
Maybe, but note that Washington v. Davis was 7-0 in its rejection of disparate impact as the Equal Protection Clause touchstone -- as I read it, Brennan and Marshall didn't reach the question -- and in the following year's Arlington Heights Brennan and Marshall endorsed the rejection of disparate impact, so we basically have unanimity. And of course this must be so as to the Equal Protection Clause, at least where race and sex are involved: Nearly all laws will have some disparate impact based on race and sex, and most laws will have substantial such impact. If Washington had come out the other way, you either would have had a return of Lochner (if the Equal Protection Clause was read as applying the same standard regardless of what race or sex was burdened) or something close to it (if it was read as protecting only nonwhites and women). So I don't think Davis does much to explain White's vote in the Free Exercise Clause context, especially given White's adherence to the constitutionally compelled exemption regime in the subsequent nearly 15 years. Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brian Landsberg Sent: Tuesday, June 03, 2008 11:00 AM To: Law Religion issues for Law Academics Subject: RE: Drift of the Court on religion As to Justice White, perhaps his position is related to his authorship of Washington v. Davis, rejecting disparate impact test in another context. From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, June 03, 2008 10:18 AM To: Law Religion issues for Law Academics Subject: Drift of the Court on religion I'm sure Justice Scalia is not credible to lots of people, just as any Justice is not credible to lots of people. But I take it the question should be whether his arguments about the Establishment Clause -- the question he seemed to be discussing -- are sound, a matter that is logically quite independent of whether one thinks his (and Justice Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the Free Exercise Clause was sound. Incidentally, speaking of the drift of the Court on religion -- has anyone studied why Justice White provided the fifth vote for the Smith majority? He did originally vote with Harlan in dissent in Sherbert v. Verner, but then seemed to accept the constitutionally compelled exemptions regime -- not joining, for instance, Rehnquist's and Stevens' expressions of skepticism on the subject -- and in Bowen v. Roy took the most pro-claimant view of any Justice. Yet in Smith he changed his view. Any thoughts on why he so concluded? Was he, for instance, persuaded by his thirty years of experience dealing with the constitutionally compelled exemptions regime that Scalia's critique was correct? Or did he always take the view that the regime was unsound and should be jettisoned at the first opportunity, but that while it continued it should be enforced relatively rigorously? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad Linda Sent: Tuesday, June 03, 2008 5:57 AM To: Law Religion issues for Law Academics Subject: Re: Scalia Decreis Drift of Court On Religion I'm not sure the author of the majority opinion in Employment Division V Smith is the most credible voice to criticize the Court's handling of religion. Brad Pardee - Original Message - From: Joel Sogol mailto:[EMAIL PROTECTED] To: Religionlaw mailto:religionlaw@lists.ucla.edu Sent: Monday, June 02, 2008 6:44 PM Subject: Scalia Decreis Drift of Court On Religion Scalia Decries Drift of Court On Religion - June 2, 2008 - The New York Sun http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion /79084/ ___ 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: Drift of the Court on religion
Sorry, Eugene. I can't help you on the question you asked about Justice White. But on the question of whether Justice Scalia's arguments about the Establishment clause are sound, I am somewhat perplexed by his apparent belief that Europe is committed to the separation of church and state and that religious expression is excluded from the public square throughout the continent. I'm not an expert on comparative law - but, to cite just one example, it certainly seems to me that European countries are far more likely to permit government subsidies of religious schools and far more willing to permit religious teaching and prayer in the public schools than the United States. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, June 03, 2008 10:18 AM To: Law Religion issues for Law Academics Subject: Drift of the Court on religion I'm sure Justice Scalia is not credible to lots of people, just as any Justice is not credible to lots of people. But I take it the question should be whether his arguments about the Establishment Clause -- the question he seemed to be discussing -- are sound, a matter that is logically quite independent of whether one thinks his (and Justice Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the Free Exercise Clause was sound. Incidentally, speaking of the drift of the Court on religion -- has anyone studied why Justice White provided the fifth vote for the Smith majority? He did originally vote with Harlan in dissent in Sherbert v. Verner, but then seemed to accept the constitutionally compelled exemptions regime -- not joining, for instance, Rehnquist's and Stevens' expressions of skepticism on the subject -- and in Bowen v. Roy took the most pro-claimant view of any Justice. Yet in Smith he changed his view. Any thoughts on why he so concluded? Was he, for instance, persuaded by his thirty years of experience dealing with the constitutionally compelled exemptions regime that Scalia's critique was correct? Or did he always take the view that the regime was unsound and should be jettisoned at the first opportunity, but that while it continued it should be enforced relatively rigorously? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad Linda Sent: Tuesday, June 03, 2008 5:57 AM To: Law Religion issues for Law Academics Subject: Re: Scalia Decreis Drift of Court On Religion I'm not sure the author of the majority opinion in Employment Division V Smith is the most credible voice to criticize the Court's handling of religion. Brad Pardee - Original Message - From: Joel Sogol mailto:[EMAIL PROTECTED] To: Religionlaw mailto:religionlaw@lists.ucla.edu Sent: Monday, June 02, 2008 6:44 PM Subject: Scalia Decreis Drift of Court On Religion Scalia Decries Drift of Court On Religion - June 2, 2008 - The New York Sun http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion /79084/ ___ 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: Drift of the Court on religion
But based on those subsidies, the UK has forbidden religious schools receiving government aid to tell students that homosexual behavior is sinful (although they can teach that the church is opposed to homosexual behavior). And under its laws regarding sexual orientation equality, it has forbidden a Catholic school to fire a headmaster (a lovely English term) who had a same sex partner. Moreover, the British have at least proposed that religious schools be required to accept a portion of students of differ faiths to avoid religious segregation.( I don't know off hand whether the proposal was adopted.)Thus, the question of whether the religious subsidies advance religious freedom is more complicated than Alan's post suggests-even before we get to the questioned of whether the nominal Christianity of public schools in England is itself any boon to religion. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Tuesday, June 03, 2008 1:35 PM To: Law Religion issues for Law Academics Subject: RE: Drift of the Court on religion Sorry, Eugene. I can't help you on the question you asked about Justice White. But on the question of whether Justice Scalia's arguments about the Establishment clause are sound, I am somewhat perplexed by his apparent belief that Europe is committed to the separation of church and state and that religious expression is excluded from the public square throughout the continent. I'm not an expert on comparative law - but, to cite just one example, it certainly seems to me that European countries are far more likely to permit government subsidies of religious schools and far more willing to permit religious teaching and prayer in the public schools than the United States. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, June 03, 2008 10:18 AM To: Law Religion issues for Law Academics Subject: Drift of the Court on religion I'm sure Justice Scalia is not credible to lots of people, just as any Justice is not credible to lots of people. But I take it the question should be whether his arguments about the Establishment Clause -- the question he seemed to be discussing -- are sound, a matter that is logically quite independent of whether one thinks his (and Justice Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the Free Exercise Clause was sound. Incidentally, speaking of the drift of the Court on religion -- has anyone studied why Justice White provided the fifth vote for the Smith majority? He did originally vote with Harlan in dissent in Sherbert v. Verner, but then seemed to accept the constitutionally compelled exemptions regime -- not joining, for instance, Rehnquist's and Stevens' expressions of skepticism on the subject -- and in Bowen v. Roy took the most pro-claimant view of any Justice. Yet in Smith he changed his view. Any thoughts on why he so concluded? Was he, for instance, persuaded by his thirty years of experience dealing with the constitutionally compelled exemptions regime that Scalia's critique was correct? Or did he always take the view that the regime was unsound and should be jettisoned at the first opportunity, but that while it continued it should be enforced relatively rigorously? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad Linda Sent: Tuesday, June 03, 2008 5:57 AM To: Law Religion issues for Law Academics Subject: Re: Scalia Decreis Drift of Court On Religion I'm not sure the author of the majority opinion in Employment Division V Smith is the most credible voice to criticize the Court's handling of religion. Brad Pardee - Original Message - From: Joel Sogol mailto:[EMAIL PROTECTED] To: Religionlaw mailto:religionlaw@lists.ucla.edu Sent: Monday, June 02, 2008 6:44 PM Subject: Scalia Decreis Drift of Court On Religion Scalia Decries Drift of Court On Religion - June 2, 2008 - The New York Sun http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion /79084/ ___ 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: Drift of the Court on religion
The comparative issues are even more complicated than previously suggested. I don't think there is a european approach to separation. In this arena, each country abides by disestablishment to different degrees. Compare France to Germany to Britain. To the extent that Justice Scalia is comparing the US to a monolithic European approach, there is a fundamental flaw in his reasoning. Marci Marci Hamilton Visiting Professor of Public Affairs Princeton University Sent from my Verizon Wireless BlackBerry -Original Message- From: Marc Stern [EMAIL PROTECTED] Date: Tue, 3 Jun 2008 13:41:16 To:Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: Drift of the Court on religion But based on those subsidies, the UK has forbidden religious schools receiving government aid to tell students that homosexual behavior is sinful (although they can teach that the church is opposed to homosexual behavior). And under its laws regarding sexual orientation equality, it has forbidden a Catholic school to fire a headmaster (a lovely English term) who had a same sex partner. Moreover, the British have at least proposed that religious schools be required to accept a portion of students of differ faiths to avoid religious segregation.( I don't know off hand whether the proposal was adopted.)Thus, the question of whether the religious subsidies advance religious freedom is more complicated than Alan's post suggests-even before we get to the questioned of whether the nominal Christianity of public schools in England is itself any boon to religion. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Tuesday, June 03, 2008 1:35 PM To: Law Religion issues for Law Academics Subject: RE: Drift of the Court on religion Sorry, Eugene. I can’t help you on the question you asked about Justice White. But on the question of whether Justice Scalia’s arguments about the Establishment clause are sound, I am somewhat perplexed by his apparent belief that Europe is committed to the separation of church and state and that religious expression is excluded from the public square throughout the continent. I’m not an expert on comparative law – but, to cite just one example, it certainly seems to me that European countries are far more likely to permit government subsidies of religious schools and far more willing to permit religious teaching and prayer in the public schools than the United States. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, June 03, 2008 10:18 AM To: Law Religion issues for Law Academics Subject: Drift of the Court on religion I'm sure Justice Scalia is not credible to lots of people, just as any Justice is not credible to lots of people. But I take it the question should be whether his arguments about the Establishment Clause -- the question he seemed to be discussing -- are sound, a matter that is logically quite independent of whether one thinks his (and Justice Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the Free Exercise Clause was sound. Incidentally, speaking of the drift of the Court on religion -- has anyone studied why Justice White provided the fifth vote for the Smith majority? He did originally vote with Harlan in dissent in Sherbert v. Verner, but then seemed to accept the constitutionally compelled exemptions regime -- not joining, for instance, Rehnquist's and Stevens' expressions of skepticism on the subject -- and in Bowen v. Roy took the most pro-claimant view of any Justice. Yet in Smith he changed his view. Any thoughts on why he so concluded? Was he, for instance, persuaded by his thirty years of experience dealing with the constitutionally compelled exemptions regime that Scalia's critique was correct? Or did he always take the view that the regime was unsound and should be jettisoned at the first opportunity, but that while it continued it should be enforced relatively rigorously? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad Linda Sent: Tuesday, June 03, 2008 5:57 AM To: Law Religion issues for Law Academics Subject: Re: Scalia Decreis Drift of Court On Religion I'm not sure the author of the majority opinion in Employment Division V Smith is the most credible voice to criticize the Court's handling of religion. Brad Pardee - Original Message - From: Joel Sogol mailto:[EMAIL PROTECTED] To: Religionlaw mailto:religionlaw@lists.ucla.edu Sent: Monday, June 02, 2008 6:44 PM Subject: Scalia Decreis Drift of Court On Religion Scalia Decries Drift of Court On Religion - June 2, 2008 - The New York Sun http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion/79084
RE: Drift of the Court on religion
I certainly did not mean to suggest that government subsidies are necessarily good for religion. My point was that the situation in Europe is far more complicated than Scalia suggests. Indeed, I think one of the failings of Scalia's jurisprudence regarding the religion clauses is that he tends to generalize about and oversimplify complex constitutional questions. Alan Brownstein From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Marc Stern Sent: Tuesday, June 03, 2008 10:41 AM To: Law Religion issues for Law Academics Subject: RE: Drift of the Court on religion But based on those subsidies, the UK has forbidden religious schools receiving government aid to tell students that homosexual behavior is sinful (although they can teach that the church is opposed to homosexual behavior). And under its laws regarding sexual orientation equality, it has forbidden a Catholic school to fire a headmaster (a lovely English term) who had a same sex partner. Moreover, the British have at least proposed that religious schools be required to accept a portion of students of differ faiths to avoid religious segregation.( I don't know off hand whether the proposal was adopted.)Thus, the question of whether the religious subsidies advance religious freedom is more complicated than Alan's post suggests-even before we get to the questioned of whether the nominal Christianity of public schools in England is itself any boon to religion. Marc Stern From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Tuesday, June 03, 2008 1:35 PM To: Law Religion issues for Law Academics Subject: RE: Drift of the Court on religion Sorry, Eugene. I can't help you on the question you asked about Justice White. But on the question of whether Justice Scalia's arguments about the Establishment clause are sound, I am somewhat perplexed by his apparent belief that Europe is committed to the separation of church and state and that religious expression is excluded from the public square throughout the continent. I'm not an expert on comparative law - but, to cite just one example, it certainly seems to me that European countries are far more likely to permit government subsidies of religious schools and far more willing to permit religious teaching and prayer in the public schools than the United States. Alan Brownstein ___ 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: Drift of the Court on religion
I doubt very much that Justice Scalia could be naive enough to think that there is a uniform approach to church state relations in Europe. I suspect that he meant France when he referred to Europe, but, as a highly placed member of the United States government, he probably didn't want to cause a diplomatic problem by publicly criticizing another country on its approach to an internal matter. It is easy to criticize an agglomeration like Europe without such concern; it was simply code. David Waddilove Adjunct Professor UALR Bowen School of Law P.O. Box 2060 Little Rock, AR 72223 On Tue, Jun 3, 2008 at 12:54 PM, [EMAIL PROTECTED] wrote: The comparative issues are even more complicated than previously suggested. I don't think there is a european approach to separation. In this arena, each country abides by disestablishment to different degrees. Compare France to Germany to Britain. To the extent that Justice Scalia is comparing the US to a monolithic European approach, there is a fundamental flaw in his reasoning. Marci Marci Hamilton Visiting Professor of Public Affairs Princeton University Sent from my Verizon Wireless BlackBerry -Original Message- From: Marc Stern [EMAIL PROTECTED] Date: Tue, 3 Jun 2008 13:41:16 To:Law Religion issues for Law Academics religionlaw@lists.ucla.edu Subject: RE: Drift of the Court on religion But based on those subsidies, the UK has forbidden religious schools receiving government aid to tell students that homosexual behavior is sinful (although they can teach that the church is opposed to homosexual behavior). And under its laws regarding sexual orientation equality, it has forbidden a Catholic school to fire a headmaster (a lovely English term) who had a same sex partner. Moreover, the British have at least proposed that religious schools be required to accept a portion of students of differ faiths to avoid religious segregation.( I don't know off hand whether the proposal was adopted.)Thus, the question of whether the religious subsidies advance religious freedom is more complicated than Alan's post suggests-even before we get to the questioned of whether the nominal Christianity of public schools in England is itself any boon to religion. Marc Stern From: [EMAIL PROTECTED] [mailto: [EMAIL PROTECTED] On Behalf Of Brownstein, Alan Sent: Tuesday, June 03, 2008 1:35 PM To: Law Religion issues for Law Academics Subject: RE: Drift of the Court on religion Sorry, Eugene. I can't help you on the question you asked about Justice White. But on the question of whether Justice Scalia's arguments about the Establishment clause are sound, I am somewhat perplexed by his apparent belief that Europe is committed to the separation of church and state and that religious expression is excluded from the public square throughout the continent. I'm not an expert on comparative law – but, to cite just one example, it certainly seems to me that European countries are far more likely to permit government subsidies of religious schools and far more willing to permit religious teaching and prayer in the public schools than the United States. Alan Brownstein From: [EMAIL PROTECTED] [mailto: [EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, June 03, 2008 10:18 AM To: Law Religion issues for Law Academics Subject: Drift of the Court on religion I'm sure Justice Scalia is not credible to lots of people, just as any Justice is not credible to lots of people. But I take it the question should be whether his arguments about the Establishment Clause -- the question he seemed to be discussing -- are sound, a matter that is logically quite independent of whether one thinks his (and Justice Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the Free Exercise Clause was sound. Incidentally, speaking of the drift of the Court on religion -- has anyone studied why Justice White provided the fifth vote for the Smith majority? He did originally vote with Harlan in dissent in Sherbert v. Verner, but then seemed to accept the constitutionally compelled exemptions regime -- not joining, for instance, Rehnquist's and Stevens' expressions of skepticism on the subject -- and in Bowen v. Roy took the most pro-claimant view of any Justice. Yet in Smith he changed his view. Any thoughts on why he so concluded? Was he, for instance, persuaded by his thirty years of experience dealing with the constitutionally compelled exemptions regime that Scalia's critique was correct? Or did he always take the view that the regime was unsound and should be jettisoned at the first opportunity, but that while it continued it should be enforced relatively rigorously? Eugene From: [EMAIL PROTECTED] [mailto: [EMAIL PROTECTED] On Behalf Of Brad Linda Sent: Tuesday, June 03, 2008 5:57 AM To: Law Religion issues for Law Academics Subject: Re
Re: Drift of the Court on religion
I don't know the answer to this question either, but it may relate to a different question. Why didn't Scalia just overrule Sherbert and Yoder instead of distinguishing them in such odd ways? Hardly anyone can take hybrid rights seriously, and taking his distinction of Sherbert seriously leads to cases like Fraternal Order of Police v. Newark. My speculation has always been that his fifth vote wouldn't vote to overrule anything. And my nominee for such behavior has always been Justice White. But that is obviously not based on much. Quoting Volokh, Eugene [EMAIL PROTECTED]: I'm sure Justice Scalia is not credible to lots of people, just as any Justice is not credible to lots of people. But I take it the question should be whether his arguments about the Establishment Clause -- the question he seemed to be discussing -- are sound, a matter that is logically quite independent of whether one thinks his (and Justice Stevens', Rehnquist's, Kennedy's, White's, and Harlan's) view on the Free Exercise Clause was sound. Incidentally, speaking of the drift of the Court on religion -- has anyone studied why Justice White provided the fifth vote for the Smith majority? He did originally vote with Harlan in dissent in Sherbert v. Verner, but then seemed to accept the constitutionally compelled exemptions regime -- not joining, for instance, Rehnquist's and Stevens' expressions of skepticism on the subject -- and in Bowen v. Roy took the most pro-claimant view of any Justice. Yet in Smith he changed his view. Any thoughts on why he so concluded? Was he, for instance, persuaded by his thirty years of experience dealing with the constitutionally compelled exemptions regime that Scalia's critique was correct? Or did he always take the view that the regime was unsound and should be jettisoned at the first opportunity, but that while it continued it should be enforced relatively rigorously? Eugene From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Brad Linda Sent: Tuesday, June 03, 2008 5:57 AM To: Law Religion issues for Law Academics Subject: Re: Scalia Decreis Drift of Court On Religion I'm not sure the author of the majority opinion in Employment Division V Smith is the most credible voice to criticize the Court's handling of religion. Brad Pardee - Original Message - From: Joel Sogol mailto:[EMAIL PROTECTED] To: Religionlaw mailto:religionlaw@lists.ucla.edu Sent: Monday, June 02, 2008 6:44 PM Subject: Scalia Decreis Drift of Court On Religion Scalia Decries Drift of Court On Religion - June 2, 2008 - The New York Sun http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion[1] /79084/ 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 Links: -- [1] http://www.nysun.com/national/scalia-decries-drift-of-court-on-religion___ 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.
