If equality between religiously motivated behavior (say, re: diet or hair
length) and its non-religious analogues is "central to Justice Steven's
thinking about the religion
clauses," all the votes are not explainable. Stevens seemed to care about
that kind of equality in Boerne, but not care abo
I think Marc makes a good point about Stevens and equality.
I also think Cutter cannot be read broadly. The Court justified the prison
side of RLUIPA against Estab Cl attack on the ground of the extraordinary
restrictions placed on religious observance when one is in prison. The
Court's sh
No one raised a constitutional issue in O Centro.
I did in an amicus brief for National League of Cities in Cutter, and the
Court explicitly reserved all constitutional questions regarding the land use
side of RLUIPA. And Thomas concurred on congressional power concerns
Marci
Sent from my
Any argument resting on the notion the Stevens didn't think it through cannot
be taken seriously. You might make that argument about some Justices in some
contexts but not Stevens in this one
Marci
Sent from my Verizon Wireless BlackBerry
-Original Message-
From: "Andrew Koppelman"
Se
The separation of powers and congressional power issues remain live after
Cutter. See Thomas conc.
Cutter is an extremely narrow holding addressing Est Cl arguments regarding the
prison provisions only.
Marci
Sent from my Verizon Wireless BlackBerry
-Original Message-
From: "Volokh,
In Boerne, one can see the church's claim as a claim for a preferential
exemption from a neutral law that burdened others in exactly the way other
property owners were burdened. His comments at oral argument in Wilkerson
suggested he saw the prison provisions of RLUIPA as ensuring concern for
u
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
th
I agree with what's been written, but I'm trying to make sense specifically
of Stevens. (I'm working on a paper on Stevens and the religion clauses.)
My question wasn't whether it's possible to reconcile the majority opinion
in Boerne with the majority opinion in O Centro. It clearly is. My
ques
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
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
I'm with Dan on the supposed separation of powers question; as I read
the opinion, the Court simply holds that Congress lacks the enumerated power to
impose its view of the proper reading of the Free Exercise Clause on the
states. It's therefore not surprising, I think, that Cutter v. W
The separation of powers defects are well-covered in the majority opinion as
well.
Sent from my Verizon Wireless BlackBerry
-Original Message-
From: "Volokh, Eugene"
Sender: religionlaw-boun...@lists.ucla.edu
Date: Mon, 11 Apr 2011 13:48:25
To: Law & Religion issues for Law Academics
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-
Fro
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
Establish
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
late
I have always thought, as Marty suggests, that free speech concerns carried
much of the water in Texas Monthly and help to explain Stevens' brief opinion
in Boerne. But I'm not sure that's the whole story. I believe Justice Stevens
envisioned a fairly active role for the Court in reviewing discr
Perhaps, but Cutter v. Wilkinson did involve a square
Establishment Clause challenge to RLUIPA, and yet Justice Stevens joined the
Court's opinion upholding RLUIPA against such a challenge.
From: religionlaw-boun...@lists.ucla.edu
[mailto:religionlaw-boun...@lists.ucla.edu] On Be
Isn't part of the explanation for Stevens' apparently conflicting stances in
Boerne and O Centro that: in the former case, the govt was trying to attack the
constitutionality of RFRA as applied to the states, whereas in the latter the
govt party chose not to attack the constitutionality of RFRA
Oh, there you go again, Marci, talking about a case as if it were something
real! :) My comment was not to what was really going on, and what was at
stake, but what was decided and what became the official version from the
S.Ct.
Of course this is nothing new -- the actual reasons for deciding a c
One, I think he clearly hadn't thought it through in Boerne. A museum or art
gallery owned by the Catholic Church would not have been protected by RFRA
either. A weekly meeting place for the local society of atheists should be
protected, although that would likely be a hard sell to many judges.
Actually, the Establishment Clause arguments were live in Boerne. We
briefed them and several of the Justices expressed concerns at oral argument.
What happened is that now-Judge Jeff Sutton, arguing for the state of Ohio,
urged the Justices not to reach the Establishment Clause issue on
Boerne is not an establishment case. Nor is it an equal protection case. It
is a federalism case protecting state power from federal interference under
section 5 of the 14th amendment -- congress must make findings that the
state is engaging in serious misbehavior (I know -- too loose a word choic
Note JPS's examples -- a museum and an art gallery. His objection might be
styled as an EC concern, but I think what's doing most of the work is
actually the speech and assembly clauses of the First Amendment. He's
suggesting what is implied in, e.g., Heffron and the opinions in Texas
Monthly --
In Boerne v. Flores, Justice Stevens declared that the Religious Freedom
Restoration Act was unconstitutional as applied to the states because it
violated the establishment clause. "If the historic landmark on the hill in
Boerne happened to be a museum or an art gallery owned by an atheist, it
wou
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