:: welcome to


:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

-- Eve Tushnet

"Frankfurter was born too soon for the Web, but I'm sure that, had it been possible, there would have been the equivalent of Ninomania for Frankfurter."
-- Mark Tushnet
(I agree, and commented here.)

"The preeminent Scalia blog"
-- Underneath Their Robes

 Subscribe in a reader

Site Feed

Also please visit my opera blog, Box Five!

    follow me on Twitter


    Above the Law, by David Lat



    Duncan's Con Law Course Blog

    Eve Tushnet

    Eye of Polyphemus, by Jamie Jeffords

    How Appealing

    Hugh Hewitt

    Justice Thomas Appreciation Page

    Legal Theory Blog

    Lex Communis

    Opinio Juris


    Paper Chase (from JURIST)

    Point of Law (Manhattan Inst.)

    Professor Bainbridge

    Public Discourse

    Redeeming Law, by Prof. Mike Schutt

    SCOTUS Blog

    Volokh Conspiracy

    WSJ Law Blog

    Other fine sites:

    Alexander Hamilton Inst. for Study of Western Civilization

    Ave Maria School of Law

    Center for Thomas More Studies

    Family Defense Center

    The Federalist Society

    The Founders' Constitution

    George Mason University School of Law

    Immigration and Refugee Appellate Center

    Judged: Law Firm News & Intelligence


    Law Prose (Bryan Garner)

    Liberty Library of Constitutional Classics

    National Lawyers Association (alternative to ABA)

    Supreme Court decisions

    The Weekly Standard

    Something I wrote about marriage

    lawyer blogs


    :: Wednesday, September 21, 2011 ::
    Smith discussion, continued from class

    What follows is first and foremost for my current students in Con Law II, whose attention is being directed to it via Blackboard, but I post it here for the general public. Comments and questions may be sent to me by email; students may send comments and questions by email or on Blackboard.

    I. "Parade of horribles"

    In a Scalia-written opinion, when you edit out the footnotes, you edit out a lot of the doctrinal action. So here I'm restoring one of them, which requires also restoring part of the O'Connor opinion.

    Prof. McConnell's edit of the O'Connor outcome-concurrence/doctrinal-dissent includes her praise of the "sensible balances" the Court has struck in the past applying the compelling state interest test to Free Exercise Cases, but leaves out her reference to the Court's "parade of horribles":
    The Court's parade of horribles, ante at 888-889, not only fails as a reason for discarding the compelling interest test, it instead demonstrates just the opposite: that courts have been quite capable of applying our free exercise jurisprudence to strike sensible balances between religious liberty and competing state interests.
    The edit also leaves out that parade itself (from the Court's opinion), so here it is. (Note that it includes Lukumi at the trial level, pre-maturely, but nonetheless the Court later found, with Scalia concurring, that the ordinance in that case violated FE even under Smith.)
    The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from [p889] compulsory military service, see, e.g., Gillette v. United States, 401 U.S. 437 (1971), to the payment of taxes, see, e.g., United States v. Lee, supra; to health and safety regulation such as manslaughter and child neglect laws, see, e.g., Funkhouser v. State, 763 P.2d 695 (Okla.Crim.App.1988), compulsory vaccination laws, see, e.g., Cude v. State, 237 Ark. 927, 377 S.W.2d 816 (1964), drug laws, see, e.g., Olsen v. Drug Enforcement Administration, 279 U.S.App.D.C. 1, 878 F.2d 1458 (1989), and traffic laws, see Cox v. New Hampshire, 312 U.S. 569 (1941); to social welfare legislation such as minimum wage laws, see Susan and Tony Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985), child labor laws, see Prince v. Massachusetts, 321 U.S. 158 (1944), animal cruelty laws, see, e.g., Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 723 F.Supp. 1467 (S.D.Fla.1989), cf. State v. Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dism'd, 336 U.S. 942 (1949), environmental protection laws, see United States v. Little, 638 F.Supp. 337 (Mont.1986), and laws providing for equality of opportunity for the races, see, e.g., Bob Jones University v. United States, 461 U.S. 574, 603-604 (1983). The First Amendment's protection of religious liberty does not require this.
    And now the main event of this part of my post: footnote 5, the Court's reply to O'Connor's "sensible balance" claim regarding this "parade":
    5. ....Justice O'CONNOR mistakes the purpose of our parade: it is not to suggest that courts would necessarily permit harmful exemptions from these laws (though they might), but to suggest that courts would constantly be in the business of determining whether the "severe impact" of various laws on religious practice (to use Justice BLACKMUN's terminology) or the "constitutiona[l] significan[ce]" of the "burden on the particular plaintiffs" (to use Justice O'CONNOR's terminology) suffices to permit us to confer an exemption. It is a parade of horribles because it is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice.

    Do you think Smith can be understood without that footnote, especially that last sentence?

    II. Yoder

    To read the book's edit of the O'Connor opinion, you'd think Wisconsin v. Yoder was a broad and lucid opinion that had controlled dozens of subsequent cases, and that it relied exclusively on the FE Clause. Actually (I've hyperlinked it for your convenience), it's a narrow opinion, so closely tied to the facts of the Old Order Amish respondents that it has been seriously doubted whether it applies to anyone else; in particular (and most dangerously) whether it applies to any religious group less insular and more socially participating than the Amish.

    And actually, Yoder has had no -- zero, nada, bupkis -- progeny in the Supreme Court. Why should it? Nobody but the Amish are the Amish. Even for the Amish it didn't work outside the school setting; see U.S. v. Lee. A less authoritative Supreme Court precedent would be difficult to imagine.

    Furthermore, the claim that Yoder relied entirely on FE does not survive a reading of it, as shown by footnote 1 in Smith (not in your edited version).

    III. "Constitutional anomaly": match wits with Justice O'Connor

    Do you understand what the Court means by individual conduct exemptions being a "constitutional anomaly"? If you do, you win the match, because Justice O'Connor plainly doesn't. She thinks the Court is saying the religious liberty itself is the "anomaly":
    Although the Court suggests that the compelling interest test, as applied to generally applicable laws, would result in a "constitutional anomaly," ante at 886, the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a "constitutional nor[m]," not an "anomaly." Ibid.
    If you think I'm misreading that passage, and therefore misreading O'Connor's reading of the Court, let me know and tell me why. It seems pretty clear to me. Be that as it may, the Court (again, see what you miss when you're not shown the footnotes?) explained what it means in footnote 3:
    3. Justice O'CONNOR suggests that "[t]here is nothing talismanic about neutral laws of general applicability," and that all laws burdening religious practices should be subject to compelling interest scrutiny because "the First Amendment unequivocally makes freedom of religion, like freedom from race discrimination and freedom of speech, a "constitutional norm," not an "anomaly." Post at 901 (O'CONNOR, J., concurring). But this comparison with other fields supports, rather than undermines, the conclusion we draw today. Just as we subject to the most exacting scrutiny laws that make classifications based on race, see Palmore v. Sidoti, supra, or on the content of speech, see Sable Communications, supra, so too we strictly scrutinize governmental classifications based on religion, see McDaniel v. Paty, 435 U.S. 618 (1978); see also Torcaso v. Watkins, 367 U.S. 488 (1961). But we have held that race-neutral laws that have the effect of disproportionately disadvantaging a particular racial group do not thereby become subject to compelling interest analysis under the Equal Protection Clause, see Washington v. Davis, 426 U.S. 229 (1976) (police employment examination); and we have held that generally applicable laws unconcerned with regulating speech that have the effect of interfering with speech do not thereby become subject to compelling interest analysis under the First Amendment, see Citizen Publishing Co. v. United States, 394 U.S. 131, 139 (1969) (antitrust laws). Our conclusion that generally applicable, religion-neutral laws that have the effect of burdening a particular religious practice need not be justified by a compelling governmental interest is the only approach compatible with these precedents.

    McDaniel struck down a law that barred clergy from elected office; the state asserted an interest in preventing "divisiveness" and in preventing Establishment Clause violations! Torcaso struck down a state-level religious test for public office; the Court saw this as enforcing belief, not merely action, and so did not even deem the question of a state interest worth considering.

    From these we see that legislation that harmfully targets religion in any specific way (even if the harm is directed at "all religions") gets either a serious c.s.i. test, the kind that means almost automatic nullification, or else a direct smackdown. But can you see why a regime of personal, roll-your-own religious (or any other kind of) exemptions from laws conceded to be otherwise valid would be an "anomaly" in any system that respects the rule of law?

    You can go here (O'Connor dissent, followed by Scalia concurrence) for another exciting episode of Match Wits With Justice O'Connor! -- in which we hear Scalia call former student McConnell "the most prominent scholarly critic of Smith" before commencing surgery on his article!

    :: David M. Wagner 10:01 AM [+] ::

    Site Meter
    This page is powered by Blogger. Isn't yours?