Cite as: 538 U. S. 343 (2003)
Thomas, J., dissenting
the statute here addresses only conduct, there is no need to analyze it under any of our First Amendment tests.
II
Even assuming that the statute implicates the First Amendment, in my view, the fact that the statute permits a jury to draw an inference of intent to intimidate from the cross burning itself presents no constitutional problems. Therein lies my primary disagreement with the plurality.
A
"The threshold inquiry in ascertaining the constitutional analysis applicable to [a jury instruction involving a presumption] is to determine the nature of the presumption it describes." Francis v. Franklin, 471 U. S. 307, 313-314 (1985) (internal quotation marks omitted). We have categorized the presumptions as either permissive inferences or mandatory presumptions. Id., at 314.
To the extent we do have a construction of this statute by the Virginia Supreme Court, we know that both the majority and the dissent agreed that the presumption was "a statutorily supplied inference," 262 Va., at 778, 553 S. E. 2d, at 746 (emphasis added); id., at 795, 553 S. E. 2d, at 755 (Hassell, J., dissenting) ("Code § 18.2-423 creates a statutory inference" (emphasis added)). Under Virginia law, the term "inference" has a well-defined meaning and is distinct from the term "presumption." Martin v. Phillips, 235 Va. 523, 526, 369 S. E. 2d 397, 399 (1988).
"A presumption is a rule of law that compels the fact finder to draw a certain conclusion or a certain inference from a given set of facts.1 The primary significance of a presumption is that it operates to shift to the opposing party the burden of producing evidence tending to rebut the presumption.2 No presumption, however, can operate to shift the ultimate burden of persuasion from the party upon whom it was originally cast.
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