Doesn't Iqbal's context of a Bivens action for damages against public officials help explain this statement? The issue is not just whether a government policy might violate the Free Exercise Clause(think the "no beards" rule in FOP v. Newark), but whether the defendant public official intentionally violated a known constitutional right. In that context, one cannot expect to recover damages in a case in which reasonable lawyers and judges will differ about "neutrality" or "general applicability." In such a case, there may be a violation of the Free Exercise Clause, but not a violation of the sort that will overcome the qualified immunity of officers.
---- Original message ---- >Date: Wed, 27 May 2009 12:00:13 -0500 >From: "Christopher Lund" <[email protected]> >Subject: Iqbal and the Free Exercise Clause >To: <[email protected]> > > There's this potentially troubling line in the > Supreme Court's recent decision in Ashcroft v. Iqbal > (at least I find it potentially troubling) that I > wanted to raise with you all. Here's the passage: > > "The factors necessary to establish a Bivens > violation will vary with the constitutional > provision at issue. Where the claim is invidious > discrimination in contravention of the First and > Fifth Amendments, our decisions make clear that the > plaintiff must plead and prove that the defendant > acted with discriminatory purpose. Church of Lukumi > Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 540-541 > (1993) ( First Amendment ); Washington v. Davis, 426 > U. S. 229, 240 (1976) ( Fifth Amendment )." > > I am a little distressed by this language and even > more by the back-to-back citations of Washington v. > Davis and Lukumi. I fear it may tend to suggest > that the Free Exercise Clause now only guards > against intentional discrimination. > > I'd read this language another way. I'd read it to > say that when a plaintiff argues a violation of > neutrality ("where the claim is invidious > discrimination"), he must plead and prove it with > the requisite detail ("the plaintiff must plead and > prove that the defendant acted with discriminatory > purpose"). But a plaintiff can go another route > altogether. He can argue that the law is not > generally applicable, and thus avoid all inquiries > about discriminatory purpose. Under my reading, > nothing in Iqbal speaks to the general applicability > requirement. > > I think my reading is the most plausible one. But > it may be that I am being unduly influenced by > my attraction to a strong substantive conception of > Free Exercise. So I'd be interested in what other > people think. > > P.S. In my defense, surely the Court did not mean > to change the Free Exercise Clause standard in a > case about pleading standards, right? Although > maybe this is meaningful as an inadvertent > disclosure about where the Free Exercise Clause is > going. (Also note that Justice Alito, who wrote the > Newark opinion while on the Third Circuit, joined > this opinion.) > > > > ______________________ > Christopher C. Lund > Assistant Professor of Law > Mississippi College School of Law > 151 E. Griffith St. > Jackson, MS 39201 > (601) 925-7141 (office) > (601) 925-7113 (fax) > Papers: > http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=363402 >________________ >_______________________________________________ >To post, send message to [email protected] >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 George Washington University Law School 2000 H St., NW Washington, DC 20052 (202)994-7053 _______________________________________________ To post, send message to [email protected] 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.
