If Marci is correct about the scope of the Boerne decision, it is quite odd that not a single Justice mentioned this, even in a footnote, in the O Centro case, in which RFRA was successfully applied to create an exemption from the federal law of controlled substances. That loud silence suggests that others on the list are correct that the separation of powers concern in Boerne is completely tied up with federalism (where Congress may not create new substantive rights to religious freedom, beyond what the free exercise clause requires). As applied to the federal government, that "congruence" objection does not apply, although the Establishment Clause still does. And I think -- to get back to Andy Koppelman's original question -- that Stevens' broad Establishment Clause view in Boerne cannot be reconciled with opinions he later joined in Cutter and O Centro. Stevens did change his mind on a number of issues over the years -- affirmative action is a good example -- and this may be such a case.
On Mon, Apr 11, 2011 at 6:55 PM, Volokh, Eugene <vol...@law.ucla.edu> wrote: > I don't see the Court's analysis as resting on the view that the > statute violated separation of powers, as opposed to being outside > Congress's enumerated powers. But, Marci, is your view that the Court > changed its mind on the separation of powers question from Boerne to Cutter? > Or that the separation of powers question remains live despite Cutter? > > Eugene > > > -----Original Message----- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com > > Sent: Monday, April 11, 2011 3:50 PM > > To: Law & Religion issues for Law Academics > > Subject: Re: A John Paul Stevens Puzzle > > > > We briefed the separation of powers argument as a stand-alone argument. > > The Court adopted much of our reasoning other than the Establishment > > Clause. If one re-reads the decision, there is significant attention > paid to > > the separation of powers as one would expect when Congress not only > > spends 3 years literally slamming the Court for its Free Exercise Clause > > interpretation and then enacts the first law in history using a judicial > level of > > scrutiny crafted for constitutional cases as a statutory standard. I > remember > > Doug telling NPR this was a "turf war" between the branches. Precisely. > > > > Marci > > Sent from my Verizon Wireless BlackBerry > > > > -----Original Message----- > > From: "Conkle, Daniel O." <con...@indiana.edu> > > Sender: religionlaw-boun...@lists.ucla.edu > > Date: Mon, 11 Apr 2011 22:01:26 > > To: Law & Religion issues for Law Academics<religionlaw@lists.ucla.edu> > > Reply-To: Law & Religion issues for Law Academics > > <religionlaw@lists.ucla.edu> > > Subject: RE: A John Paul Stevens Puzzle > > > > I assume Marci is referring to the separation of powers, Marbury v. > Madison, > > elements of the opinion, which I think are properly confined to the 14th > Am. > > Sec. 5 context and therefore to a federalist interpretation, but which > could > > be read more broadly. > > > > Dan Conkle > > > > -----Original Message----- > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > boun...@lists.ucla.edu] On Behalf Of Volokh, Eugene > > Sent: Monday, April 11, 2011 4:48 PM > > To: Law & Religion issues for Law Academics > > Subject: RE: A John Paul Stevens Puzzle > > > > I'm puzzled by the statement that "RFRA was not ... held > > unconstitutional solely on federalism grounds" -- as I understand the > > majority opinion, it cited only the federalism objections to RFRA, and > not > > the Establishment Clause. (Justice Stevens' solo concurrence mentioned > the > > Establishment Clause, but the five other Justices in the majority didn't > > endorse that opinion.) > > > > > -----Original Message----- > > > From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw- > > > boun...@lists.ucla.edu] On Behalf Of hamilto...@aol.com > > > Sent: Monday, April 11, 2011 1:31 PM > > > To: Law & Religion issues for Law Academics > > > Subject: Re: A John Paul Stevens Puzzle > > > > > > RFRA was not challenged nor held unconstitutional solely on federalism > > > grounds. That is the post hoc explanation of its proponents. > > > But you are correct that RFRA as app to federal law comes up through > the > > > courts without a constitutional angle because no party will challenge > it. It > > is > > > the latest example of what is wrong with a system that requires the AG > > > Office to defend federal law without serious consideration of whether > it is > > > actually constitutional or not > > > > Well, but at least following Cutter v. Wilkinson, doesn't it seem > > pretty likely that the RFRA is indeed actually constitutional against the > > federal government, just as RLUIPA was indeed upheld? > > > > Eugene > > _______________________________________________ > > 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. > > > > _______________________________________________ > > 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. > -- 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 My SSRN papers are here: http://papers.ssrn.com/sol3/cf_dev/AbsByAuth.cfm?per_id=181272#reg
_______________________________________________ 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.
