Majority in Locke vs. Davey used the right level of Scrutiny?

Great Debates
1

http://supct.law.cornell.edu:8080/supct/html/02-1315.ZS.html

The majority in the case of Locke vs. Davey applied rational basis review for Davey’s Equal Protection claim after finding the program is not a violation of the Free Exercise clause. The program is not a violation of the Free Exercise Clause, however, we apply rational basis scrutiny to his equal protection claims. ibid at page 6 of Westlaw document.

What is terribly lacking from the majority is any in depth analysis in determining what level of scrutiny to apply is any mention and application of the rule established in Employment Division vs. Smith. In addressing the constitutional protection for free exercise of religion, our cases establish the general proposition that a law that is neutral and of general applicability need not be justified by a compelling governmental interest even if the law has the incidental effect of burdening a particular religious practice. Employment Div., Dept. of Human Resources of Ore. v. Smith, supra Church of the Lukumi Babalu Aye, Inc. v. City of

*Neutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance 532 that interest Church of the Lukumi Babalu Aye, Inc. v. City of

The Majority can hardly be accused of analyzing the facts of Locke vs. Davey through the rule laid down in Employment Division vs. Smith. How very convenient for the majority? The Washington statute at issue stipulated the following: HECB’s policy is codified at Wash. Admin. Code § 250-80- 020(12). It provides: ‘Eligible student’ means a person who: (a) Graduates from a public or private high school located in the state of Washington; and b) Is in the top ten percent of his or her 1999 graduating class; or © Is in the top fifteen percent of his or her 2000 graduating class; and (d) Has a family income less than one hundred thirty-five percent of the state’s median; and (e) Enrolls at least half time in an eligible postsecondary institution in the state of Washington; and (f) Is not pursuing a degree in theology.

It is my opinion this statute is not neutral on its face. It specifically excludes the pursuit of a degree in theology. Now of course the assumption is this discriminates against the religious and only religious people would pursuit a degree in theology and legally the assumption may go further in that the assumption is the individual is pursuing a degree in theology because of their religious beliefs. I believe this to be a safe assumption, after all, how many atheists and agnostics go to a Christian seminary school? How many atheists and agnostics seek to become theology majors at a school that will provide a Christian perspective on their studies to do so? Furthermore, the religious belief and practice discriminated against is the fact some may feel called by God to go into ministry. As Justice Scalia observed the Washington statute singles out anyone for special burdens on the basis of…religious callings". The exclusion of those pursuing a theology degree because of their religious beliefs are discriminated against in this statute.

Additionally, while the majority conveniently ignored applying the rule articulated in Employment Division vs. Smith, their argument rests upon an unsupportable assumption.

It imposes neither criminal nor civil sanctions on any type of religious service or rite. ibid at page 4. Yeah but so what! The Court failed to provide any authority approving of the constitutionality of a statute that facially discriminates against religion is permissible so long as there are no severe criminal or civil consequences for doing so. So the assumption by the majority the statute, although facially discriminatory, is permissible because it did not punish with severe criminal or civil penalties is unsupported.

In my opinion, strict scrutiny should have been applied as this is not a facially neutral statute.

2

You’ve put me in the uncomfortable position of being forced to agree with either Rehnquist, Scalia, or Thomas!

From a cursory reading, I’m inclined to agree with you: the statute seems to be discriminatory on it’s face. Also, this from the majority is throwing me:

[quote=The State’s interest in not funding the pursuit of devotional degrees is substantial and the exclusion of such funding places a relatively minor burden on Promise Scholars.[/quote]

What substantial interest is he talking about? The only reason I could tell that the statute excluded devotional students was because the state constitution required it.

3

The substantial interest is the ESTABLISHMENT CLAUSE. You know, the one that says there must be a seperation between church and state?

“Aha,” say the people who think they know much more about law then they do, “But there is no Constitutional requirement for seperation of church and state! That’s just Jefferson’s language!” This is true, federally. But the state in which this case arose has a MUCH STRONGER Establishment Clause. You can look it up if you like, as I don’t have the resources on me, but essentially the state Constitution says that “no government money will go towards religious stuff.”

So the question in this case is, basically, “Is upholding the state’s Establishment Clause a compelling state interest and was this policy rationally related to it?” There isn’t a Free Exercise claim here because the state isn’t STOPPING anyone from pursuing a Theology degree, they’re just not giving him money to do it. (Insert banal discussion of the action-inaction distinction here.)

The Equal Protection claim would only force the court to look at whether there was a “substantial state interest” and the policy was the “least restrictive means” to achieve it. I think you get the same result here, either way. Court probably went with rational basis because they really don’t like upholding things under strict scrutiny.

-C

4

Article 1, Section 11 of the Washington State Constitution

5

The statute doesn’t have to be neutral. Unlike race, religion, gender, national origin, and occasionally sexual orientation, “course of study” is not a protected class.

Unless specifically directed by the state constitution (since the U.S.Con. doesn’t mention it either), whether the statute is neutral to the course of study is irrelevant.

Now, if the statute read, “pursuing a degree in Presbyterian theology,” or whatever, the neutrality standard would apply.

Also, amarinth has graciously provided the Washington Separation doctrine: “No public money or property shall be appropriated for or applied to any religious worship, exercise or instruction”.

6

Don’t pay too much attention to that opinion anyway. I’m fairly certain that Rehnquist voted with the majority purely so he could assign himself the opinion and ensure that there would be nothing in it which would call into question the legality of school voucher programs.

7

Two significant differences come to mind between Locke (which I have not read) and the Santeria case.

First, there did not appear to be any evidence that the general ban on scholarship funds for theology students was motivated by anti-religious animus. In the Santeria case, the holding very much depended on the proof that the ordinance in question was motivated by the desire to target practitioners of the Santeria religion. If there is no anti-religion animus here, then the Santeria case is inapplicable.

Second, there is (at least arguably) a difference between singling out a disfavored minority–the Santeria practitioners in S. Florida–and enacting legislation that singles out a “group”–everybody who isn’t an atheist–that comprises 95% of the population. The implication of religious bigotry is string in the former case, but very, very weak in the latter.

That said, I was somewhat surprised by the outcome in Locke.

8

Yes Dutchboy it does according to Supreme Court precedent, which you apparently ignored.

Bravo, but the Free Exercise clause protects much more than “classes”. It protects “conduct” and religious beliefs. The religious “conduct” in this case is pursuing a theology degree because one felt God called him into the seminary field. As Justice Scalia noted, “*singles out anyone for special burdens on the basis of…religious callings”. *

Your reasoning is woefully deficient. Your argument appears to amount to nothing more than so long as they do not single out a particular “denomination” then the Free Exercise Clause is permissible. Well you should McDaniel vs. Paty as this Supreme Court decision repudiates your reasoning. The law at issue in McDaniel vs. Paty was “all inclusive” of all religions but still violated the Free Exercise Clause. So I reject your lofty, legally unsupportable assumption, that so long as all denominations are discriminated against equally and not one is targeted for discrimination, then the Free Exercise clause does not apply nor does the neutrality standard.

The neutrality standard applies regardless of whether or not one denomination or all of them are discriminated against. Under your reasoning, wholesale discrimination against the religious would be permissible.

Consider this rule by Kennedy in Church of Lukumi Babalu*In our Establishment Clause cases we have often stated the principle that the First Amendment forbids an official purpose to disapprove of a particular religion or of religion in general. At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. *

If you are talking about the Establishment Clause of the First Amendment, then your point is moot! The U.S. Supreme Court ruled in Witters vs. Washington that the Establishment Clause did not prohibit funding of this type.

Very true but the Santeria case never held the neutrality standard of Employment Division vs. Smith was applicable only when there was anti-religious animus. Nor is there any opinion anywhere which holds the neutrality test of Employment Division vs. Smith is applicable only when animus towards religion is present. Indeed Lukumi suggests something more.

The word “theology” does not admit of secular meanings. Additionally, the term “theology” as construed by the state of Washington has a very religious connotation and does not hint of any secular terms associated with the word “theology”. It would then appear to me, then, the law is not facially neutral.

9

Ah yes, that one. I was for some reason reading the opinion as saying that there was a substantial interest above and beyond the Establishment Clause of the state constitution, pehaps an economic one, that I wasn’t seeing. Perhaps a too fast reading at 5 on a Friday resulted in some cerebral flatulence.

Classy way of bringing it to my attention, by the way. May I remain in class, or am I to be excused for not having properly briefed?

10

so, to those of you who disagree with the decision: would you nullify the clause of washington’s constitution that prohibits providing funding toward the goal of religious worship? the law in question seems to follow the state constitution directly. by that, i mean, allowing the state to fund religious studies would directly contradict the state constitution. hell, the case could be made that it violates the us constitution as well, violating the establishment clause. it would fail in today’s court, the way the challenge to school vouchers failed, but the case could be made convincingly, i think.

it seems to me that the opposite yields discrimination, as well. would you require washington to provide funding for theology studies, so long as they provided funding for secular studies? what about employment? if the state provided subisides for other public services, such as private hospital management, would you require them also to fund something like church employment?

personally, i didn’t believe this would be a very hard case to decide. i don’t see anything about a practice prohibiting funding toward religious worship as a violation of the equal protection clause, as a result of our history of trying to establish a mostly secular state.

11

So what? Surely, you don’t think that the failure of a previous case to make exactly the holding under discussion means that a later case cannot do so. Locke clearly distingtuishes the Santeria case where the Santeria case did not do so itself. B.F.D.

Nor is there any opinion anywhere that holds monkeys might fly out of my butt. So what’s your point?

Nonsense. That quote suggests only that religious animus must be, ya know, religious animus. “Religious” don’t cut it, and neither does “animus.” Without both, the Santeria case simply doesn’t apply. That’s why your appeal to Washington’s singling out of “theology” doesn’t get you anywhere.

Now if Washington had banned public funding of theology scholarships because they hated religion, then you’ve got something. But they didn’t, so you don’t.

12

I think you have missed the point. Go back and re-read Employment Division vs. Smith. Regardless of how you slice it, Lukumi interpreted Employment Division vs. Smith to mean that if the statute is not facially neutral, then strict scrutiny is applied. They made no mention of animus towards religion as being a necessary condition for strict scrutiny to apply. If the statute is not facially neutral, then strict scrutiny is applied.

The majority has no legal precedent, and neither do you, to support your assumption the neutrality test is applied only when “animus” is present.

To the contrary, however, the language in Lukumi has interpreted Employment Division vs. Smith much more broadly. If the statute is not facially neutral, then strict scrutiny is applied. That is the rule laid down in Lukumi and it is not contingent upon animus.

*Neutrality and general applicability are interrelated, and, as becomes apparent in this case, failure to satisfy one requirement is a likely indication that the other has not been satisfied. A law failing to satisfy these requirements must be justified by a compelling governmental interest and must be narrowly tailored to advance *532 that interest Church of the Lukumi Babalu Aye, Inc. v. City of A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context. *

I think I have plenty to rely upon. The Court in Lukumi did not interpret Employment to apply only to instances of animus. Rather, they stated a statute which is not facially neutral is subject to strict scrutiny. This was the only qualification they had and indicated in the case of Lukumi. You are stretching for more than what the Court actually said in Lukumi.

13

Minty I think you and I are arguing past each other.

Let me state I am not relying upon Lukumi for any other reason than its interpretation of Employment Division vs. Smith and the application of the Smith rule. So your distinctions, in my opinion, do very little to weaken the point I am making.

My point is the majority did not apply the appropriate level of scrutiny. They should have applied strict scrutiny because the statute is not facially neutral. This is my point and nothing you have said to this point weakens this contention. Your distinctions do very little to weaken this conclusion. Unless we assume Lukumi stands for the proposition the test espoused in Employment Division vs. Smith is applicable only when there is animus towards religion. However, I think Lukumi itself repudiates this assumption and consequently, your distinctions does very little to weaken my conclusion the Court did not apply the proper level of scrutiny nor did they use the appropriate test.

With that said I proceed to the case
*At a minimum, the protections of the Free Exercise Clause pertain if the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons. “[a] law burdening religious practice that is not neutral … must undergo the most rigorous of scrutiny,” id., at 546, 113 S.Ct. 2217, the minimum requirement of neutrality is that a law not discriminate on its face," id., at 533, 113 S.Ct. 2217. *

No mention of animus in this passage as being necessary for the Free Exercise clause, or its test, to be applied. So long as the law at issue discriminates against some or all religious beliefs or regulates or prohibits conduct because it is undertaken for religious reasons than the protections of the Free Exercise clause pertain. The minimum requirement is the law not discriminate on its face. No animus is required! No animus is required for strict scrutiny to be applied and no animus is required for the Smith test to be applied to determine if the statute is facially neutral.

The statute targets anyone who, in Scalia’s words :“single[s] out” anyone “for special burdens on the basis of … religious callings” . As a result, the statute is not facially neutral and fails the neutrality test of Smith. Consequently, strict scrutiny should have been applied. Again, I rely upon Lukumi only for its interpretation of Free Exercise rules and principles, its interpretation of Smith, and the application of the Smith rule. Your distinctions do very little to weaken my position.

14

Nonsense. The Santeria case, like the peyote case before it, quite clearly holds that strict scrutiny only applies if the statute is not neutral and not generally applicable. See Lukumi Babalu Aye, 508 U.S. 531-32; Smith, 494 U.S. 872, 879-81. The “animus” requirement is just a different way of describing the neutrality requirement.

Don’t believe me? Okey doke. But it would be a shame if you just ignored the operative language in the Santeria case because they didn’t use the exact word “animus.” Observe:

Now, back to your argument:

Nonsense again. The neutrality requirement is all over the Court’s First Amendment jurisprudence. Check out the page cite I just gave you to Smith, if you don’t believe me.

But even assuming that you were correct–which, of course, you are not–so freakin’ what? The Court was answering a question that had never been presented to it before. Unless you can demonstrate that the opposite conclusion in Locke was actually compelled by the Court’s previous jurisprudence–which, of course, you cannot so demonstrate–all you’re complaining about here is that you wish it had gone the other way. Not such a compelling argument, that one.

15

Well you got part of it correct. Lukumi does state if the statute is not facially neutral then stict scrutiny applies. The key words are “facial neutrality” as opposed to “object” or “motivation” of the law, which is what you are focusing upon and is fatal to your own argument. The animus is in regards to the “object” or “motivation” for the passage of the law whereas looking upon the “face” of the statute is different in that it goes no further than the statute itself. Keep your eye on the ball sparky.

But not the only way, which is my point. *A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context. Petitioners contend that three of the ordinances fail this test of facial neutrality because they use the words *534 “sacrifice” and “ritual,” words with strong religious connotations. Brief for Petitioners 16-17. We agree that these words are consistent with the claim of facial discrimination, but the argument is not conclusive. The words “sacrifice” and “ritual” have a religious origin, but current use admits also of secular meanings. See Webster’s Third New International Dictionary 1961, 1996 (1971). See also 12 Encyclopedia of Religion, at 556 ("[T]he word sacrifice ultimately became very much a secular term in common usage"). The ordinances, furthermore, define “sacrifice” in secular terms, without referring to religious practices. *

First of all, they are looking at the “face” of the statute in this passage. Hence, the use of the words “facial neutrality”. They are not looking at anything else other than the “face of the statute”. No mention or application of animus in this passage because the animus part of the opinion does not come into play only until they looked at the “face” of the statute and the animus analysis is in regards to the “object” or “motivation” for passing the law. There is more than one way to determine neutrality and your assumption that “animus” is the only way is, to use your words “Nonsense”. Quite clearly, looking at the “face” of the statute is one way to determine if the statute is neutral. Looking upon the face of the statute is the first step and it is irrespective of animus. I will have more on this in a moment.

You must have been under the influence of peyote because I have never disputed the neutrality requirement is not all over the Court’s Free Exercise jurisprudence.

But of course I am correct as I have already demonstrated. The first step in the Court’s analysis in Lukumi Babalu was to look at the face of the statute. This is to be the first step in the analysis by the Court in all Free Exercise Clause cases alleging discrimination. In fact it is the first step! Indeed the first step in Lukumi was to look at the statute and discern if it discriminated facially, irregardless of animus I might add.

In fact, the Court in Lukumi rejected the contention that if they could not find facial discrimination, then their inquiry ended. *We reject the contention advanced by the city, see Brief for Respondent 15, that our inquiry must end with the text of the laws at issue. *

When the Court in Lukumi could not find facial discrimination, or found that it was facially neutral, they then investigated the “object” or “motivation” for the statute and its existence. Indeed the Court noted if the object or motivation of the law was born out of “animus” toward religion, then the law is not neutral. However, in this instance they are no longer looking at the “face” of the statute but going beyond the face of the statute. So there are two ways, as indicated by Lukumi, to determine neutrality. There is the question of whether or not the statute is facially neutral and then there is a focus upon the object or motivation for the passage of the law.

Since the Washington statute “facially” discriminates, then it is not neutral and as a result, strict scrutiny should have been applied. This is my point. Under the analysis of strict scrutiny it is questionable whether or not the state of Washington would have won this case.

16

Not to beat a dead horse, Minty, but you missed the most important qualifying words in those Supreme Court quotes you reference are:

*if the object of a law… the ordinances had as their object *

Object of the law is different and suggests something much more than simply looking at the “face” of the statute. As I noted before, the first step in Lukumi Babalu was to look at the “face” of the statute and determine if it discriminated against religion. So one way, as I noted before, to determine neutrality is to look at the “face” of the statute. Once the Court did not find “facial” neutrality, then they examined the “object” of the law. The two are not necessarily synonymous inquiries but quite different inquiries. One looks only at the “Face” of the statute whereas the other looks at the “object” of the law which goes beyond the face of the statute.

So as I said before, looking at the “face” of the statute is one way to ascertain “neutrality” and should be and normally is the first step of analysis to be used by the Court. It was in fact the first step used by the Court in Lukumi. Since the majority in Locke ignored this step completely, it can hardly be said the conclusion they reached is legally sound. Had they followed the step of looking at the “face” of the statute, then it would have been determined the Washington state statute is facially discriminatory and therefore, strict scrutiny should have been applied.

17

can you demonstrate this? i’m not sure, strictly speaking, that this is the case, and so far you have only claimed that this is your opinion.

18

Nope. You’re ripping the “facial neutrality” the test from its context. The Santeria case is quite clear about what it means: “To determine the object of a law, we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face.” See, the touchstone of neutrality is whether the law is discriminatory against religion. Locke just filled in what you have to have to show “discrimination” in this context: actual animus, not just drawing a distinction between religious and secular practices.

No shit? You mean there’s a difference between looking at the face of the statute and examining the motives of the people who passed it? You mean, exactly like the Court explained in the Santeria case, and exactly like I’ve already described in this very thread?

Wow, thanks for setting me straight, “chum.”

No. Whether it’s described as “neutrality” or “animus” or “discrimination,” the point you’re ignoring is that it’s the same inquiry. Different labels, same thing.

Take it to the Pit, little man.

Depends on what you mean by “discriminates,” doesn’t it? It seems pretty well clear after Locke that the Supreme Court is using it in the sense of intransitive definition #2. It is not enough for the law to mention religion or even draw a distinction between reliigious things and secular things. If the law does not discriminate against religion–either facially or as a matter of legislative intent–t does not violate the Free Exercise clause.

19

First of all, I am not at all ripping facial neutrality test from the context. The Santeria case is very clear and the Majority there engaged in a two step inquiry. A fact you still, to this point, despite references to the case, ignore. Observe please:

*We reject the contention advanced by the city, see Brief for Respondent 15, that our inquiry must end with the text of the laws at issue. * The majority is looking at the “text” or the “face” of the statute. They made this statement after engaging in this analysis:*A law lacks facial neutrality if it refers to a religious practice without a secular meaning discernable from the language or context. Petitioners contend that three of the ordinances fail this test of facial neutrality because they use the words *534 “sacrifice” and “ritual,” words with strong religious connotations. Brief for Petitioners 16-17. We agree that these words are consistent with the claim of facial discrimination, but the argument is not conclusive. The words “sacrifice” and “ritual” have a religious origin, but current use admits also of secular meanings. See Webster’s Third New International Dictionary 1961, 1996 (1971). See also 12 Encyclopedia of Religion, at 556 ("[T]he word sacrifice ultimately became very much a secular term in common usage"). The ordinances, furthermore, define “sacrifice” in secular terms, without referring to religious practices. *

This is the first step of the majority and their wording and operation is very specific. They are looking at nothing more than the “face of the statute”. You simply cannot deny the fact the court, as its first step in this case, was to look at the “face of the statute”. To buttres my point the Court’s first step was to look at the “face of the statute” the city attempted to limit the Court’s analysis to the “face of the statute” only. This is evidenced by the fact the Court declined such an invitation when they said: *We reject the contention advanced by the city, see Brief for Respondent 15, that our inquiry must end with the text of the laws at issue. *

*we must begin with its text, for the minimum requirement of neutrality is that a law not discriminate on its face." *

Thanks for helping my argument Minty! You are very generous. They began with the “text” of the statute indicating the minimum requirement of neutrality is that a law not “discriminate on its face”. Discriminate on its face is the key language! The law cannot discriminate on its face! Regardless of what you have said, the Court began its analysis by looking at the face of the statute and discerning whether or not the statute discriminates on its face. Hence, the Court in Lukumi began its analysis of ascertaining discrimination, as I have said all along, by looking at the face of the statute, something the majority in Locke did not do but should have.

Here is my point Minty, in case it has been lost in all of the posts. The Court in Davey vs. Locke did not follow precedent. They did not look at the face of the statute as they did in Lukumi. The minimum requirement of neutrality is that a law not discriminate on its face. However, the majority never looked at the “face of the Washington statute”. Rather, they completely ignored it. Hence, the majority was not true to the neutrality test which requires, as indicated in Lukummi, the statute not discriminate on “its face”. Since the majority never looked at the “face of the statute” then their analysis was incomplete and so was their conclusion. They simply looked at the Washington law through only one lense of the neutrality test while ignoring the other lense, the face of the statute. Since this is the case, then it can hardly be concluded the Washington law did not violate the Free Exercise Clause.

Now admittedly looking at the face of the statute may not have changed the outcome of the case. It is possible the Court in Locke could have still reached the same conclusion. They could have looked at the face of the statute and concluded it did not facially discrimnate. However, the majority in Locke did not look at the face of the statute. The majority ignored the “face” of the statute. Hence, their analysis was not complete and consequently their standard of review may have been incorrect.

20

So the majority didn’t look to the face of the Washington constitutional provision to see if it “discriminates” against religion, you say? Wow, that must come as quite a surprise to Chief Justice Rhenquist and the rest of his majority, since he quite clearly wrote: “In short, we find neither in the history or text of Article I, §11 of the Washington Constitution, nor in the operation of the Promise Scholarship Program, anything that suggests animus towards religion.”

Good job ignoring the whole “discrimination” definitional problem, too. It’s so much easier to ignore the law when you’re arguing about it, don’t you think?