(174) In circumstances where the state has not shown neutrality towards religion, however, or where a law is not generally applicable, a different rule applies under a later case, Church of the Lukumi
Babalu Aye v.
This reasoning is in tension with Greece's nondiscrimination policy and seems to stop at facial neutrality when Larson and Lukumi
Babalu Aye appear to require more.
Joined by Justice Thomas, Justice Scalia wrote a vigorous dissent arguing that the theology degree exception should have been subjected to strict scrutiny, and deemed presumptively unconstitutional, because it singled out religion for a special burden--invoking the Church of Lukumi
decision to support his argument.
(236) Writing for the 7-2 majority, Justice Kennedy cited Church of the Lukumi
for the proposition that "the government, if it is to respect the Constitution's guarantee of free exercise, cannot impose regulations that are hostile to the religious beliefs of affected citizens and cannot act in a manner that passes judgment upon or presupposes the illegitimacy of religious beliefs and practices." (237) The majority's basis for finding hostility on the part of the Commission stems in part from uncontested comments made during a public meeting by one commissioner:
His earlier opinion in Lukumi
rightly invoked Arlington Heights, an equal protection decision concerning racial discrimination.
, the Court, helpfully, surveyed other cases involving the application of the Free Exercise Clause under then-prevailing norms:
(40.) In Lukumi
, the petitioner church and its members practiced
note 18, at 52 ("Lukumi
involved the threat of a $500 fine or sixty
It is therefore not surprising to find out that the three main African-derived religions in Cuba came from the cabildos of major groups: the Kongo, Lukumi
and Carabali nations.
Absent evidence of patent discrimination by government against a particular religion (see, for example, Church of Lukumi
Bababalu Aye v.
Lynn Carr's A Year in White: Cultural Newcomers to Lukumi
and Santeria in the United States (Rutgers University Press), before the author had a chance to see it.