But that language is Scalia explaining why he is not doing a balancing test but rather the abdication test. Scalia clearly wanted out of religious exercise jurisprudence and did so — he did not adopt a balancing test. I guess I misread your original post.
-- Prof. Steven D. Jamar Assoc. Dir. Howard IP Program Howard University School of Law vox: 202-806-8017 fax: 202-806-8567 http://sdjlaw.org “The two most important days in your life are the day you are born and the day you find out why.” Mark Twain > On Nov 22, 2016, at 4:26 PM, Case, Mary Anne <mac...@law.uchicago.edu> wrote: > > The quoted language comes directly from Scalia’s opinion in Smith. The full > sentence is: ”It may fairly be said that leaving accommodation to the > political process will place at a relative disadvantage those religious > practices that are not widely engaged in; but that unavoidable consequence of > democratic government must be preferred to a system in which each conscience > is a law unto itself or in which judges weigh the social importance of all > laws against the centrality of all religious beliefs.” There thus seem to be > 2 typical Scalia desiderata in tension with one another – the desire for > clear rules and the desire that the laws have democratic warrant. In the > quoted sentence, he seems to be suggesting that sending accommodation back to > the legislature will have the advantage of getting the courts out of the > business of balancing, which he hated, but of course RFRA mandates precisely > such balancing, unless it is read instead to “make each conscience a law unto > itself.” > <> > From: religionlaw-boun...@lists.ucla.edu > <mailto:religionlaw-boun...@lists.ucla.edu> > [mailto:religionlaw-boun...@lists.ucla.edu > <mailto:religionlaw-boun...@lists.ucla.edu>] On Behalf Of Steven Jamar > Sent: Tuesday, November 22, 2016 3:20 PM > To: Law Religion & Law List > Subject: Re: Scalia's views of RFRA? > > I never read Smith that way — it was a straight up carte blanche to the > legislative and executive branches provided the law was neutral and generally > applicable — no weighing of competing interests involved. > > Steve > -- > Prof. Steven D. Jamar > Assoc. Dir. of International Programs > Institute for Intellectual Property and Social Justice > http://iipsj.org <http://iipsj.org/> > http://sdjlaw.org <http://sdjlaw.org/> > > "A life directed chiefly toward the fulfillment of personal desires sooner or > later always leads to bitter disappointment." > > Albert Einstein > > > > On Nov 22, 2016, at 4:07 PM, Case, Mary Anne <mac...@law.uchicago.edu > <mailto:mac...@law.uchicago.edu>> wrote: > > judges the task of “weigh[ing] the social importance of all laws against the > centrality of all religious beliefs”(Smith) > > _______________________________________________ > To post, send message to Religionlaw@lists.ucla.edu > <mailto:Religionlaw@lists.ucla.edu> > To subscribe, unsubscribe, change options, or get password, see > http://lists.ucla.edu/cgi-bin/mailman/listinfo/religionlaw > <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.
