Iqbal and the Free Exercise Clause
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 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.
RE: Iqbal and the Free Exercise Clause
I think the alternative reading that Chris offers is the appropriate way to understand this language. I don't think this language precludes an argument that a law is not neutral or generally applicable without proving discriminatory purpose. I actually thought this language was a plus for free exercise claims. As I recollect in Lukumi, Kennedy could not get a majority to agree that it was permissible to inquire into legislative motive to challenge Hialeah's ordinance. By juxtaposing Lukumi and Washington v. Davis, the Court gives litigators a bit more of an argument that direct inquiries into legislative motive might be as permissible in free exercise cases as they are in equal protection cases. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Christopher Lund Sent: Wednesday, May 27, 2009 10:00 AM To: religionlaw@lists.ucla.edu Subject: Iqbal and the Free Exercise Clause 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 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.
Re: Iqbal and the Free Exercise Clause
When would a law that's not neutral or not generally applicable not also be intentionally discriminatory? Can a legislature negligently or unknowingly enact a law that's not neutral or not generally applicable? Art Spitzer ** Dinner Made Easy Newsletter - Simple Meal Ideas for Your Family. Sign Up Now! (http://pr.atwola.com/promoclk/100126575x1221991367x1201443283/aol?redir=http:%2F%2Fad.doubleclick.net%2Fclk%3B215225819%3B37 274678%3Bs%3Fhttp:%2F%2Frecipes.dinnermadeeasy.com%2F%3FESRC%3D622) ___ 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.
RE: Iqbal and the Free Exercise Clause
Good question. There is certainly some range of opinions on whether a law that requires a lot of individualized applications or exceptions is sufficiently general for Smith purposes. Also, legislative accommodations of religion that do not reach all faiths may not be intentionally discriminatory. I also think it is possible to be perceived as creating a religious gerrymander without deliberately intending to do so. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of artspit...@aol.com Sent: Wednesday, May 27, 2009 10:33 AM To: religionlaw@lists.ucla.edu Subject: Re: Iqbal and the Free Exercise Clause When would a law that's not neutral or not generally applicable not also be intentionally discriminatory? Can a legislature negligently or unknowingly enact a law that's not neutral or not generally applicable? Art Spitzer ** Dinner Made Easy Newsletter - Simple Meal Ideas for Your Family. Sign Up Now! (http://pr.atwola.com/promoclk/100126575x1221991367x1201443283/aol?redir=http:%2F%2Fad.doubleclick.net%2Fclk%3B215225819%3B37274678%3Bs%3Fhttp:%2F%2Frecipes.dinnermadeeasy.com%2F%3FESRC%3D622) ___ 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.
RE: Iqbal and the Free Exercise Clause
if the standard is the that legislature knows what it is doing, nothing will ever be unconstitutional. Marc From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of Brownstein, Alan Sent: Wednesday, May 27, 2009 1:51 PM To: Law Religion issues for Law Academics Subject: RE: Iqbal and the Free Exercise Clause Good question. There is certainly some range of opinions on whether a law that requires a lot of individualized applications or exceptions is sufficiently general for Smith purposes. Also, legislative accommodations of religion that do not reach all faiths may not be intentionally discriminatory. I also think it is possible to be perceived as creating a religious gerrymander without deliberately intending to do so. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of artspit...@aol.com Sent: Wednesday, May 27, 2009 10:33 AM To: religionlaw@lists.ucla.edu Subject: Re: Iqbal and the Free Exercise Clause When would a law that's not neutral or not generally applicable not also be intentionally discriminatory? Can a legislature negligently or unknowingly enact a law that's not neutral or not generally applicable? Art Spitzer ** Dinner Made Easy Newsletter - Simple Meal Ideas for Your Family. Sign Up Now! (http://pr.atwola.com/promoclk/100126575x1221991367x1201443283/aol?redir =http:%2F%2Fad.doubleclick.net%2Fclk%3B215225819%3B37274678%3Bs%3Fhttp:% 2F%2Frecipes.dinnermadeeasy.com%2F%3FESRC%3D622) ___ 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.
RE: Iqbal and the Free Exercise Clause
Kennedy wrote Iqbal, and this sentence may well reflect his understanding of Smith and Lukumi. But as Chris Lund noted, what he cites in the Lukumi opinion is two pages on motive that only got two votes. Nine voted to strike the ordinances down, but only two relied on evidence of motive. An aggressive statement about Lukumi, supported by a citation to those two pages, reads as a statement about what those two pages mean, but expressly not a statement about what the rest of the opinion means -- the part that had the support of the Court. Quoting Brownstein, Alan aebrownst...@ucdavis.edu: Good question. There is certainly some range of opinions on whether a law that requires a lot of individualized applications or exceptions is sufficiently general for Smith purposes. Also, legislative accommodations of religion that do not reach all faiths may not be intentionally discriminatory. I also think it is possible to be perceived as creating a religious gerrymander without deliberately intending to do so. Alan Brownstein From: religionlaw-boun...@lists.ucla.edu [mailto:religionlaw-boun...@lists.ucla.edu] On Behalf Of artspit...@aol.com Sent: Wednesday, May 27, 2009 10:33 AM To: religionlaw@lists.ucla.edu Subject: Re: Iqbal and the Free Exercise Clause When would a law that's not neutral or not generally applicable not also be intentionally discriminatory? Can a legislature negligently or unknowingly enact a law that's not neutral or not generally applicable? Art Spitzer ** Dinner Made Easy Newsletter - Simple Meal Ideas for Your Family. Sign Up Now! (http://pr.atwola.com/promoclk/100126575x1221991367x1201443283/aol?redir=http:%2F%2Fad.doubleclick.net%2Fclk%3B215225819%3B37274678%3Bs%3Fhttp:%2F%2Frecipes.dinnermadeeasy.com%2F%3FESRC%3D622[1]) Douglas Laycock Yale Kamisar Collegiate Professor of Law University of Michigan Law School 625 S. State St. Ann Arbor, MI 48109-1215 734-647-9713 Links: -- [1] http://pr.atwola.com/promoclk/100126575x1221991367x1201443283/aol?redir=http:%2F%2Fad.doubleclick.net%2Fclk%3B215225819%3B37274678%3Bs%3Fhttp:%2F%2Frecipes.dinnermadeeasy.com%2F%3FESRC%3D622___ 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.
Re: Iqbal and the Free Exercise Clause
That makes sense and does a lot to explain it. Although I'm still then a little confused by the opinion. I mean if we agree that (1) Free Exercise violations do not require a showing of bad motive (just a lack of general applicability), and (2) Bivens liability does not require a showing of bad motive (just a violation of clearly established law) * then why does the Court suggest that a plaintiff must show bad motive to get Bivens liability premised on an FEC violation? To put it another way, why can't one premise a Bivens claim on a pure failure of general applicability (without any finding of bad motive)? I mean, it's possible to imagine a law that is passed with good motives, but so obviously fails the general applicability requirement that it is contrary to clearly established law (i.e., Lukumi). As a result, officials acting under such a law would have their qualified immunity overcome, and thus be liable for damages under Bivens (or Section 1983). Iqbal seems to reject this, buy why? Based on what everyone has been saying, I'm now thinking that all this is interesting, but probably way beyond what the Court intended to say or suggest. Maybe Iqbal says what it says about Free Exercise simply because the plaintiffs in Iqbal were alleging intentional religious discrimination of an obvious and flagrant kind. The Court simply isn't thinking about general applicability, and doesn't mean to say or change anything about it. Oh and finally, I think Art Spitzer earlier asked for an example of a law that was neutral, but not generally applicable. A good example is FOP v. Newark (which Professor Lupu alludes to below). The citation is 170 F.3d 359 (3d Cir. 1999), and it's written by then-Judge Alito. I think we've discussed it on this listserv a couple times before. The case finds a police department's policy not generally applicable. I don't think it says anything about motive one way or the other * the point is that the lack of general applicability makes motive irrelevant. Best, Chris __ 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 icl...@law.gwu.edu 5/27/2009 1:44 PM 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 l...@mc.edu Subject: Iqbal and the Free Exercise Clause To: religionlaw@lists.ucla.edu 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
Re: Iqbal and the Free Exercise Clause
To clarify Chris's point just a bit: In Iqbal, plaintiff argued that he was mistreated because he was a Muslim. The government said it had nothing against Muslims; it was jailing people suspected of terrorism, and unfortunately, that group is disporportionately Muslim. So the parties set it up as in effect a choice between disparate treatment and disparate impact. Given that context, the citation to Washington v. Davis makes sense, and thinking of free exercise in the same terms also makes sense. This puts some meat on the bones of Chris's original textual analysis that the sentence is written in the conditional. The sentence still has bad potential to be misread when taken out of context. Quoting Christopher Lund l...@mc.edu: That makes sense and does a lot to explain it. Although I'm still then a little confused by the opinion. I mean if we agree that (1) Free Exercise violations do not require a showing of bad motive (just a lack of general applicability), and (2) Bivens liability does not require a showing of bad motive (just a violation of clearly established law) * then why does the Court suggest that a plaintiff must show bad motive to get Bivens liability premised on an FEC violation? To put it another way, why can't one premise a Bivens claim on a pure failure of general applicability (without any finding of bad motive)? I mean, it's possible to imagine a law that is passed with good motives, but so obviously fails the general applicability requirement that it is contrary to clearly established law (i.e., Lukumi). As a result, officials acting under such a law would have their qualified immunity overcome, and thus be liable for damages under Bivens (or Section 1983). Iqbal seems to reject this, buy why? Based on what everyone has been saying, I'm now thinking that all this is interesting, but probably way beyond what the Court intended to say or suggest. Maybe Iqbal says what it says about Free Exercise simply because the plaintiffs in Iqbal were alleging intentional religious discrimination of an obvious and flagrant kind. The Court simply isn't thinking about general applicability, and doesn't mean to say or change anything about it. Oh and finally, I think Art Spitzer earlier asked for an example of a law that was neutral, but not generally applicable. A good example is FOP v. Newark (which Professor Lupu alludes to below). The citation is 170 F.3d 359 (3d Cir. 1999), and it's written by then-Judge Alito. I think we've discussed it on this listserv a couple times before. The case finds a police department's policy not generally applicable. I don't think it says anything about motive one way or the other * the point is that the lack of general applicability makes motive irrelevant. Best, Chris __ 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[1] icl...@law.gwu.edu 5/27/2009 1:44 PM 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 l...@mc.edu Subject: Iqbal and the Free Exercise Clause To: religionlaw@lists.ucla.edu 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
