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/>
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