Re: Locke v. Davey and expanded free exercise rights

[Hamilton02]

On the one hand, Alan is absolutely correct that the Court refers to expansive state constitutional rights.  On the other hand, the Court dramatically narrows the usefulness of Lukumi in attacking laws for violation of the federal Free Exercise Clause.  The argument that Lukumi's strict scrutiny applied simply because religion is mentioned, excluded, or treated differently in a law is defunct.  Lukumi's rationale was narrowed to instances where there is "animus" and "hostility" to religion.  The Court could not have said it more often. 

Marci 


In a message dated 2/26/2004 1:31:32 PM Eastern Standard Time, [EMAIL PROTECTED] writes:

I was particularly pleased with footnote 8 in the majority opinion that
pointed out that Washington provides greater free exercise protection than
the federal constitution. Conceptually, this resonates with the argument
that there an important connection or equilibrium in interpreting the
religion clauses such that the rigorous enforcement of one reinforces and
justifies the rigorous enforcement of the other. Pragmatically, it supports
the rhetorical argument that a state that uses the play in the joints it is
allowed to impose more restrictions on the funding of religious
institutions and activities than the federal constitution requires ought to
provide comparably greater protection to religious institutions and
activities on the free exercise side of the constitutional equation as well.

Alan Brownstein
UC Davis

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