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Justice Ginsburg wrote the opinion. There's a
separate Thomas concurrence.
More to follow.
- Original Message -
From:
Marty Lederman
To: Law Religion issues for Law
Academics
Sent: Tuesday, May 31, 2005 10:05
AM
Subject: RLUIPA Unanimously Upheld in
Cutter
The funny thing about
"compelling interest with deference" is that it has been present since at
leastKorematsu.
Bobby
In a message dated 5/31/2005 11:21:55 AM Eastern Standard Time,
[EMAIL PROTECTED] writes:
One might also note we now have
another area of law (in addition to
Agreed. But on my reading of
Korematsu, Black seems to be saying "even though we decide for the government in
this case, the vast/overwhelming majority of discriminations are likely to be
declared unconstitutional." Is it a fair reading of Ginsburg to think that
her opinion says, "even
As a bit of an aside, perhaps, the "compelling interest" standard of Korematsu, or as Bobby appropriately labeled it, "compelling interest with deference," is the standard we use rather than anything directly from Brown v. Board. Brown v. Board changed the country and indeed the law, but it
Well, this has been the paradox in Free Exercise
Clause law all along, hasn't it?: That the Court articulated a strict
scrutiny test in Sherbert/Yoder, but never came anywhere close to
applying such a test in the free-exercise context: The government
virtually always won, by hook or by
Actually, what is most striking is that the Court reads RLUIPA as requiring
deference to prison officials despite the least restrictive means
requirement. The latter does seem to be read out of the
statute.
Marci
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This very paradox -- and the problems of the limits of logic and language in the law -- was the main impetus for an article I wrote some years back about how RFRA could not be interpreted or applied in a literal way. Instead, there is an inherent sliding scale of compellingness of the interest
Time for another AALS panel writing the obit for Lemon? :)SteveOn May 31, 2005, at 12:12 PM, Stuart BUCK wrote:So has the Lemon test been interred, or not? Compare footnote 6 of the majority ("We resolve this case on other grounds."), with Thomas's footnote 1 ("The Court properly declines to
Indeed, I recall reading
that Thurgood Marshall used the Korematsu test in oral argument, and I
also seem to recall thatstrict scrutiny was used inMarshall's
brief.If that's so, it's even more astounding that Chief Justice Warren
did not include such an analysis in his opinion. I seem to
I see no interment. They have ignored it before, and
then returned to it when they thought it helpful. This opinion relies on
Amos, and Amos marches through the Lemon test, so it
may just be that they have more specific doctrine to work with on this
issue.
Douglas Laycock
University of
My SCOTUSblog post on the decision. I welcome
suggestions -- and encourage responses in the "Comments" section of
theblog.
http://www.scotusblog.com/movabletype/archives/2005/05/cutter_v_wilkin.html
Cutter
v. Wilkinson
11:54 AM | Marty Lederman | Comments
(0) | TrackBack
(0)
In Cutter
I agree that the true test on
the meaning of strict scrutiny under RLUIPA or RFRA will come with the UDV case
next term.
But I'd add that I don't
see a meaningful dilution of "strict scrutiny" in this decision. Instead,
the Court just reaffirmedtwo unremarkable propositions: (1) that
I think it's been clear for a long while that
when the Court cites theLemon test, it's almost an afterthought
-- a pro forma doctrinal appendage or a fig leaf. (This was especially
true in Amos, I think.)That's why many folks who brief
these cases to the Court -- Doug and I included --
I didn't intend to suggest anything otherwise -- I
believe we're in agreement, and apologize for any confusion. Where we
might disagree is on the question of whether "strict" scrutiny was ever
all-that-strict in Free Exercise/RFRA/RLUIPA law.
- Original Message -
From:
Well,
yes and no, but mostly no.
On its
facts, Sherbert involved better treatment for a very narrow slice of
secular interests than for Sherbert's religious interest. That fact was
not noted in the Sherbert opinion, but it was the
Court's basis for preserving the result in Smith.
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