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:: 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 ::

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    :: Sunday, June 29, 2014 ::
    So tomorrow we get Hobby Lobby, and based on who's been writing from each sitting, either Alito or Roberts is expected to write it. But Alito could deliver the labor opinion that's also expected, and with Roberts writing Hobby Lobby, it could be a victory for religious freedom in the marketplace, or it could be a split, like Noel Canning and McMullen.

    The unanimous loss for Obama's position in Noel Canning has been duly noted, but, as Justice Scalia pointed out, the Court rejected the historically defensible meanings of "session" and "recess" and instead held little more than that the President can't use a Senate lunch break for a recess appointment, and that we the Court hereby invent a 3-and-10-day rule and will keep you posted. Yes, it's amazing to find a mostly-Democrat-appointed majority, led by Breyer, telling Obama he can't do something he thought he could do; and, as for McMullen, it's amazing when this Court unanimously finds a restriction on pro-life speech unconstitutional; but the ban self-evidently applied only to abortion opponents, and contained exceptions for their adversaries - and the Court found it "content neutral," and unconstitutional only because it's a little too broad, and btw see Part IV for hints on how to do it better next time.

    In Gonzales v. O Centro Espirita, Roberts for a unanimous Court wrote that federal RFRA really means what it says, and if a majority still thinks that, then (without even getting into the issue of RFRA-less Free Exercise), that should produce a strong 9-0 for Hobby Lobby. But in various district courts, judges have been taking it upon themselves to determine what constitutes a "substantial burden" on religion, a judicial practice rightly discountenanced in Employment Division v. Smith; and of course Hobby Lobby is a business, not a church (not that that should matter, because there's no reason to think either the Free Exercise Clause or RFRA applies only to churches, but....)

    Does the fact that Scalia has been spending a lot of time on "scathing concurrences" recently mean that he has nothing to say against the Hobby Lobby opinion? Maybe - but he also wrote a stirring dissent in Lee v. Weisman in 1992 that came out a few days before his even more stirring dissent in Casey. Maybe his denunciatory work in Noel Canning and McMullen mean he's just in the groove this month.

    :: David M. Wagner 9:53 PM [+] ::

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