It used to be good enough, but we know that is not the case anymore. What you call "standard" failure to accommodate is on shakier ground too, if one cobbles together Rosenberger, Dale, and state/fed RFRAs.
But as I said, I think under the "logic" of current case law, Locke is particularly hard to defend -- and thus your hypos are even harder to defend. That does not mean I think that Locke is a bad result --I don't. As for the Chief's opinions, I disagree with some of what has been said here. Imagine the ornate version of Locke --the one some of us yearned to read -- in which every one of the doctrinal balls thrown to the Court is shagged. The assumption that spinning every theory that this complex little case implicated would have yielded a better outcome, or even a more analytically sound opinion, may not be incorrect. Sometimes (maybe this is the deadening effect of deaning....ugh) short and sweet is better when one has to juggle incommensurables, as I think the Court does in nearly all of the "unconstitutional conditions" cases. I also think the Chief may be heeding the sage advice of my high school driver's education instructor: "Never back up more than you have to --you increase the chances of hitting something." Speaking of short and sweet --that's more than enough from me on this thread. -----Original Message----- From: [EMAIL PROTECTED] [mailto:[EMAIL PROTECTED] On Behalf Of Volokh, Eugene Sent: Tuesday, May 03, 2005 12:51 PM To: Law & Religion issues for Law Academics Subject: RE: Locke v. Davey follow-up But this isn't just a standard failure to accommodate, as in Smith, Bob Jones, U.S. v. Lee, and the like -- this *is* discrimination against religion (both the hypo and the program in Locke). One might argue that it's justifiable discrimination, but it's discrimination. As to the government's reasons for the condition, both in Locke and in my hypo, the government is indeed saying "because this is religious and we wish to respect what we see as taxpayers' right not to fund the sacred." Is that good enough? Toni Massaro writes: > I think that every failure to accommodate does not constitute > "discrimination against" -- not that there is no such thing > as a failure to accommodate that rises to the level of > persecution, hostility or selective burdening of religion > that crosses constitutional lines. > > I think the Court's emerging account of "neutrality" does not > capture this nuance. > > As for the hypo --a very tough one, as are all of the > "unconstitutional conditions" hypos -- I would first ask for > the government's reasons for the condition along with other > factors that weigh in this balance. It may well be that there > is no good reason for drawing this line other than hostility. > "Romer-like" > > My point about "neutrality" being an insufficient tool is > that I think the government should have more room to say > "because this is religious and I wish to respect a line > between the sacred and the secular by avoiding the former's > support categorically" than "because this is indecent or has > sexual content or....and I do not like it" > > Also, "neutrality" has a liberal equality ring to it, and I > think our religious selves are more resistant to liberal > methodologies than other aspects. _______________________________________________ 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 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.
