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Employment Division v. Smith: The Eye of the Storm (UPDATE)

The bishops' call for respect for religious freedom is rhetorically adamant. But it is not legally specific. Strikingly, it does not situate itself in the context of the relevant court opinions interpreting the Free Exercise Clause of the Constitution. Here, of course, the key case is Employment Division v. Smith, which radically revised Supreme Court free exercise jurisprudence in 1990-over twenty years ago. In a nutshell, Smith states that valid, generally applicable (criminal) laws do not run afoul of the Free Exercise Clause of the Constitution, even if they hamper some religious practices. And so, the free exercise clause of the First Amendment does not prohibit the state of Oregon from enacting a generally applicable criminal provision against the use of drugs, without granting an exemption to Native Americans using peyote in the course of a religious ceremony. The Smith case would apply as well to a law enacting a generally applicable criminal provision against the use of alcohol, without granting an exemption to Catholics for mass. The most significant thing about Smith, however, is not that the case upheld the prohibition, but that it changed the applicable test. Rather than applying "strict scrutiny," which would have required a compelling state interest and a narrowly tailored law designed to impinge upon religious liberty as little as possible, Smith said that a rationale basis test was enough, provided that the purpose of the law was not to target the affected religious group.Where, exactly, are the bishops' account of religious liberty rooted? In the First Amendment caselaw? As you will see if you read the opinion, Smith poses a real problem for their position. Here is a key quote:

The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development. Lyng, supra, 485 U.S., at 451, 108 S.Ct., at 1326. To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is compelling-permitting him, by virtue of his beliefs, to become a law unto himself, Reynolds v. United States, 98 U.S., at 167-contradicts both constitutional tradition and common sense.

If the bishops are conducting a culture war, why not treat Smith as the judicial bete noire of religious freedom jurisprudence, in much the same way that they've treated Roe v. Wade as the judicial bete noire of abortion jurisprudence? In my view, for three reasons. First, many (but not all) pro-life legal scholars have developed an approach to constitutional jurisprudence that is tied very closely to the text of the constitution and the intent of the framers--an approach that would tend to undermine Roe and support Smith. Without saying so, in the context of religious liberty, the bishops seem to be making an argument based on the spirit of the First Amendment, upon the rights found in its penumbras, upon the "spirit" of the First Amendment, not its "letter" It is this "living constitution" argument, of course, that was used to justify the development of a right to privacy, which in turn justified a right to abortion. Second, it is this living constitution argument that many Republican presidential candidates have promised to repudiate in order to fulfill their promises to their prolife constituencies. Third, the author of the Smith opinion (and of the sentence I quoted above) is none other than Associate Justice Antonin Scalia--who is the hero and hope of the pro-life movement on the Court.Here, conversely, is what Justice Harry Blackmun (the author of Roe's majority opinion) had to say about religious freedom in his dissent from Scalia's majority opinion in Smith:

This [the majority's] distorted view of our precedents leads the majority to conclude that strict scrutiny of a state law burdening the free exercise of religion is a luxury that a well-ordered society *909 cannot afford, ante, at 1605, and that the repression of minority religions is an unavoidable consequence of democratic government. Ante, at 1606. I do not believe the Founders thought their dearly bought freedom from religious persecution a luxury, but an essential element of liberty-and they could not have thought religious intolerance unavoidable, for they drafted the Religion Clauses precisely in order to avoid that intolerance.

Constitutional politics makes strange bedfellows!UPDATE: My friend (and extremely gracious host at St. John's) Marc de Girolami on Mirror of Justice says "enough already" with the analysis of Smith! With all due respect, I think he's quite mistaken here, for three reasons. First, it's important to get a grasp on the general rule=--and to appreciate the enormous change it worked in first amendment jurisprudence, before moving on to the exceptions--before getting into the weeds. Second, there is nothing in the rhetoric of the bishops or their surrogates that suggests that this is a matter of discerning whether in fact, an exception is appropriate. Their rhetoric is absolute and demanding; it's not "We -recognize-that--the normal-rule-is-this-but-we're-entitled-to-an-exception." That analysis requires looking at the factors on all sides of the equation, including the interests of the state in not granting an exemption, not asserting what appears to be an absolute right to religious freedom. Third, I think it is undeniable that Smith significantly demoted the protections given to religious freedom under the constitution. Why not criticize it? Why all the effort to shift the discussion elsewhere?So we have a four step box dance that goes like this : 1) The bishops focus the attention on the absolute right to religious freedom; 2) when people say, "What about Smith" (the basic case on the matter); they respond "look at the exceptions" to Smith; and 3) when people say, well, actually, deciding whether an exception applies requires a careful balancing test, taking into account the interests of the government; 4) they respond, "the right to religious freedom is basic and absolute." And we're back where we started.Again, and I"ll bold it: WHY NOT CRITICIZE SMITH? It deserves it.If you want to get into the weeds, lets get into the weeds. Things aren't as clear there. And you have to take into account the government's interest as well.

About the Author

Cathleen Kaveny is the Darald and Juliet Libby Professor in the Theology Department and Law School at Boston College.



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There is another aspect which I've been trying to point out, but has not yet had much discussion: the role of Catholics, even Vatican officials, in denouncing religious liberty concerns of Native Americans (even after Smith caused a backlash and an attempt to fix the problems contained in the decision). Huston Smith's book "A Seat at the Table" is important for any discussion of religious liberty in the US. In it, one finds cases where, post-Smith, the Church has sought to limit religious concerns of Native Americans for its own interests (such as putting a telescope on top of a holy mountain, Mt. Graham, where the scientific research explained as holding more authority than cultural/religious concerns).

Professor Kaveny: You are trying to be sensible.However, I am not sure that the Catholic bishops in the USCCB are trying to be sensible.I think that two things are going on here.On the one hand, I think that the Catholic bishops in the USCCB are going through the same kind of identity crisis that I have claimed that Bill Donohue is going through that is, a crisis in the sense of a specifically masculine sense of identity. (I have explained this point in the thread on dotCommonweal about Donohue.)On the other hand, I think that the Catholic bishops in the USCCB are trying their hand at the American jeremiad. Thats why they are invoking the American tradition of freedom of religion. But the American bishops grew up in the ghetto culture of American Catholicism, where the American tradition of the American jeremiad was largely associated for understandable reasons with Protestants. As a result the American bishops are handicapped when they try their hand at the American jeremiad.Now, if my two observations here are basically accurate, then the challenges to their specifically masculine sense of identity will lead them to defensive over-responses to the challenges. The American jeremiad is almost tailor-made for strong denunciations, so their over-responses expressed as an American jeremiad are going to sound over-wrought, to say the least. Under such circumstances, they are probably not going to be impressed with your attempt to be sensible, because they are not attempting to be sensible.

Prof. Kaveny:Thanks for this. Do you think it makes any difference that we're dealing in the case of the HHS Mandate with civil, rather than criminal, law? I'm assuming that's the case. Do you think that would make any difference under the rationale given in Smith? I personally can't see why, but since you emphasize that this is a matter of criminal law, do you see one?

Thanks for this; it's very helpful. Coincidentally, I have a student writing a term paper on Smith this semester, so I've been refamiliarizing myself with all these issues -- and I'll probably point her over here, too.

Shortly after Smith, Congress passed the Religious Freedom Restoration Act to reverse the effect of Smith and establish a stricter standard of review for Freedom of Exercise cases.The Supreme Court held the RFRA unconstitutional as applied to state actions but it does still apply to federal government actions.

I don't think that the analysis turns on it being criminal law-- although a litigator might try to distinguish the case on that basis. Prrof. Farrell, as you know, I have written quite a lot about Catholic appropriation of the jeremiad and agree with you on that point. But I think that it is important for the rest of us to look at the situation more analytically as well as prophetically.

I am well aware of RFRA. But RFRA is a statute- not the constitution. The bishops' claims appear to be attempting to ground themselves in something more than a statutory right. It is true that it controls HHS regs- but it is not clear to me that they would fall under it, given the precedent. I have not seen the bishops invoke any specific laws at all- just a general claim to religious freedom.It is very odd.

Sure, the rest of us should look at the situation more analytically, because the American bishops are not being very analytical in issuing their heartfelt cries regarding their supposed freedom of religion.

We do have to decide how to respond to those cries. I find analysis helps me in making decisions.

Sure, we do have to decide how to respond to their cries.Your way of proceeding is to try to analyze their battle cry about freedom of religion. But that is just their battle cry. They just latched onto freedom of religion as a battle cry.My way of proceeding is to analyze their heartfelt expressions as growing out of their Catholic thought-world, on the one hand, and, on the other, as growing out of challenges to the specifically masculine sense of identity. In the case of the Catholic bishops, their sense of specifically masculine identities is very closely intertwined with their Catholic thought-world.

Fair enough. I think there is room for both.

Profs. Kaveny and Farrell --Consider an additional factor in the analyses applicable to both approaches, namely, the starting point -- the current standing of bishops in the US as a perceptive few of them might have recognized it a year ago. An objective assessment then would have pointed out an overwhelming need to change the subject and accomplish something widely perceived as worthwhile to restore their credibility and effective authority. They desperately needed some cause with which they could visibly succeed. In 2011, the black cloud of child abuse coverup and more abusers persisted, two trials of officials were approaching, the participating share of the Catholic population continued to shrink, battles against same-sex marriage were being lost, Humanae Vitae had passed its 40th anniversary without notable impact, etc. Memories remained of Olmsted's emergency obstetrics, Nienstedt's thousands of anti-same-sex marriage DVDs, Paprocki linking the devil and child sexual abuse suits, Chaput defeating statute-of-limitation extensions, etc. Evidently, religious liberty was chosen as the adaptable, All-American-sounding, multi-purpose umbrella. (It's unfortunate that non-contraception ended up as a confusion factor in the middle of the opening round, given the bishops' difficulty in arguing their position on it.) Listening to them this week, what is their primary objective -- that they clearly win the conflict they define and thereby regain their stature or that they rescue religious liberty in the US? The two aims suggest different values, tactics, and decision criteria along the way.

"It is true that it controls HHS regs- but it is not clear to me that they would fall under it, given the precedent. I have not seen the bishops invoke any specific laws at all- just a general claim to religious freedom."-- Cathleen KavaneyTo the extent that the bishops are involved in the Becket Fund's four cases against the HHS contraception mandate, those all put RFRA as the first count. This is from Ave Maria, but the others are similar:"CLAIMS COUNT IViolation of the Religious Freedom Restoration Act127. The Mandate and Defendants threatened enforcement of the Mandate violate the University's rights secured to it by the Religious Freedom Restoration Act, 42 U.S.C. 2000bb et seq." follow a number of First Amendment counts based on Free Exercise, Establishment Clause and Freedom of speech. In the Nature of the Action, they describe RFRA as "a civil-rights statute""8. The Defendants actions therefore violate the Universitys right to freedom of religion, as secured by the First Amendment to the United States Constitution and by a civil rights statute, the Religious Freedom Restoration Act (RFRA)."

I have those in my pile to read. Are the bishops actually plaintiffs in those cases? Has the conference issued a legal analysis?Right now I just don't see the first amendment claim. And I am not sure I buy the RFRA claim either, because of US v. Lee. I will let you know.In any case RFRA attempts to undo Smith. RFRA is the anti- Smith. Why aren't the bishops going after Smith? See above. That is what is interesting to me!

Yes, Jack Barry, the Catholic bishops are using the contraception-coverage mandate to change the subject. The bishops don't want to come clean about the role of bishops in enabling priest-sex-abuse. So the bishops would prefer to change the subject to something else besides the priest-sex-abuse scandal.The conservative noise machine in the United States likes to make lots of noise about the Obama administration.So the Catholic bishops have joined the conservative noise machine by making a lot of noise about the Obama administration's contraception-coverage mandate.But the Supreme Court is scheduled to issue a ruling about the health-care act by the end of June. In principle, the Supreme Court could throw out the entire health-care act, in which case there would be no further discussion of the contraception-coverage mandate.So we are going to have to wait until the end of June to find out what the Supreme Court is going to rule.So why are the Catholic bishops revving up their campaign against the contraception-coverage mandate this far in advance of the Supreme Court ruling in June?I guess that they are revving up their campaign at this time so that they can get media coverage for their campaign at this time.Yes, they are using the larger framework of freedom of religion to frame their campaign, and they apparently hope to include other issues as well in their campaign.Like many other people, I am willing to play the game of arm-chair strategist. However, unless the Catholic bishops plan to roll out some further statements in the near future, I do not understand why they are revving up their campaign at this time.

"Are the bishops actually plaintiffs in those cases?"No. But they hired Anthony Picarello, from Becket, to be their in-house counsel. He was at Becket for seven years and is said to be an expert on the First Amendment. He became famous a few months ago by bringing up on TV the idea that if he left the USCCB and opened a Taco Bell stand he should be exempt, as an individual, from providing contraception coverage for his employees.

To a man with a hammer, everything looks like a nail.

Cathy:Dont all of the issues mentioned in the bishops bill of particulars (the HHS mandate, Alabamas immigration law, New York Citys after-hours access policy, state university policies for student groups, etc.) go to *political* failures to respect religious freedom, which Smith itself invites as the best way to address the problem of religious exemptions and accommodations (and not through a judicially-crafted strict in theory, futile in fact approach that wasnt doing much good for religious free exercise claimants)? With regard to cross-cutting invocations of a "living constitution," isnt it possible to (1) believe Smith is rightly decided (or at least be agnostic about Smith as a matter of constitutional interpretation), and (2) still argue that legislatures and agencies should grant robust religious exemptions where possible? And could you say a bit more about how you think U.S. v. Lee throws light on the strength of the RFRA claim against the HHS mandate? I guess I see some important differences for purposes of compelling interest and least restrictive means analysis between administering a system of Social Security taxation and imposing an insurance mandate that already includes a number of exceptions (for certain religious employers on the contraceptive mandate itself and also for a range of other covered employers for mini-med plans and the like)?

Court decisions don't determine morality - and don't determine anything even in law forever. The Constitution is so vaguely written that it can be and is likely to be subject to continual reinterpretation. That's one reason why all the actors in society need to be constantly articulating and defending their positions. Being silent is an option only if you intend to become marginalized.

Michael (04/13/2012 - 10:43 pm), isn't it necessary to engage the government on all levels - executive, legislative, and judicial? All three are active in creating policy, and each has the power to alter or even nullify the actions of the others.

Re Comment by Prof. Kaveny, (4/13, 7:46) In any case RFRA attempts to undo Smith. RFRA is the anti- Smith. Why arent the bishops going after Smith? See above. That is what is interesting to me! In support of Prof. Morelands question (above, 10:43) isnt it possible to (1) believe Smith is rightly decided (or at least be agnostic about Smith as a matter of constitutional interpretation), and (2) still argue that legislatures and agencies should grant robust religious exemptions where possible? see comment by Prof. Marc DeGirolami : The misconception is that Smith is an iron rule with no exceptions -- that any law which appears "neutral" when considered in some sort of antiseptic laboratory (i.e., neutral by the plain meaning of the text) is permissible. But in fact, that isn't at all what Smith held. As I and (Prof.) Michael (Moreland) have discussed here, Smith's exceptions are, or are rapidly becoming, at least as important as its rule. The rhetorical appeal of Smith's hard-edged language has given people the misimpression that "our legal system" admits of no exceptions for religious conscience, ever. And this, from my point of view, is another problem with Smith. It confuses the discourse about religious liberty -- it warps it by suggesting a hard, exceptionless rule as somehow constitutive of "our" political and legal traditions. But that rule -- and the values which underwrite it -- have never, in fact, represented our approach to religious liberty. As Prof. Kevin C. Walsh added in a comment, litigation under the RFRA is where the real action will be.

It's not true that a textualist reading of the Constitution necessarily supports Smith, nor is it true that expansive religious freedom requires a "living Constitution." The First Amendment refers to the free "exercise" of religion. As a textualist, one can easily say that this text requires protection for something more than mere religious belief; in fact, it requires protection for the "exercise" of religion, which is more robust and obviously would include religiously-inspired activities. Perhaps a line has to be drawn somewhere (human sacrifice), but to draw the line at providing no protection whatsoever if the law purports to be generally applicable is NOT a sound textualist reading.

????Stuart, when did I say "necessarily"? I said "tends to" --and it tends to because Scalia is a leading proponent of both.

Mr. Kelly, I don't see how one can commend RFRA without condemning Smith. The "Restoration" in the second "R" is patently restoration of the standard rejected in Smith. I think it's certainly possible to say "that state legislatures should grant. . . exemptions when possible." But, as I will say in my next post, 1) the language of the bishops isn't "Please grant us an exemption"--It strongly suggests (Language of tyranny, etc.) that a basic constitutional right has been violated. And that's what I don't see, under Smith. To make that claim would require resisting Smith--which they're not doing. Second, any "exemption"--and any victory under RFRA --requires a consideration of interests on both sides, as well as precedent. I don't see the bishops making a nuanced argument that takes into account the claims on the other side. The rhetoric is absolute. But the analysis, alas is far more complicated. This responds to Prof. Moreland as well, but I'll do a post on Lee later today or tomorrow.

Would Smith in principle make it possible for a state to prohibit the use of wine, not excluding its use in a Christian Eucharist?

Cathy, thanks for the reference. I am glad to be talking together -- but I want to emphasize at the outset that I was not specifically thinking about your post when I wrote mine. For several weeks, I've seen analysis about "what the Constitution requires" with respect to this controversy, and I guess the dam finally broke for me. And I should also emphasize that I consider Cathy to be a terrific scholar, as well as a friend too.Some points of fundamental agreement: I am right there with you that Smith is not a good way to think about the FEC. It is well worth criticizing, and I have done so (and will do so more formally soon enough). In fact, the exceptions it needed to carve out to sail around the existing doctrinal framework are indications that it just is not all that viable. To my mind, there is a real question about which way of conceptualizing the FEC will eventually win the day -- Smith or Hosanna-Tabor.But (and I should emphasize again that this point is not directed specifically at your post), I actually think that with respect to the mandate, the Church's constitutional case is considerably stronger than what seems to show up just about everywhere. In my post, I put it at about 60-40 for not finding an FEC violation. Maybe an even better way to think about it is that for every 10 cases decided on this issue, about 4 may go the Church's way. So from the Church's point of view, there's actually some fairly strong reason *not* to criticize Smith, particularly if one compares the real results of the balancing approach in play before the Smith rule. It's not as if religious claimants were having great success then either (they'd be lucky to win 4 out of 10 cases).Again, that does not mean that Smith is great. I don't think it is. But it does mean that the prospects for success on the FEC claim here are, in my view, more complicated than meets the eye, particularly in light of the seemingly (misleadingly) straightforward rule that Smith itself announces.Thanks again for the engagement.Marc

Cathy: Thanks for launching an important and worthwhile discussion. I guess I still don't see how it's impossible to "commend RFRA without condeming Smith" if you think religious exemptions are primarily a matter of legislative and administrative judgment. You also assert here that Smith worked an "enormous [F]irst [A]mendment jurisprudence" and that "it is undeniable that Smith significantly demoted the protections given to religious freedom under the constitution." But as I noted in my earlier comment about the toothless strict scrutiny that Smith overturned, the only cases in the 30-year Sherbert to Smith period in which religious free exercise claimants won were a few unemployment insurance cases (see Marc's point over at MOJ about individualized assessments) and Wisconsin v. Yoder (a case in which the Court is less than completely clear about whether it's a religious free exercise or parental liberty right at stake). Everyone else lost. Furthermore, I wonder why you think Philip Hamburger is so wildly mistaken in his important article on exemptions, "A Constitutional Right of Religious Exemption: An Historical Perspective," 60 G.W.U.L. Rev. 915 (1992), which always seemed to me quite persuasive. And I think you're missing Marc's larger point, which is that Smith's rule itself was (and is now evermore) less than absolute, which Hosanna-Tabor, Lukumi, and the recent line of lower court decisions regarding failure of general applicability and/or neutrality make clear. Mike

"Would Smith in principle make it possible for a state to prohibit the use of wine, not excluding its use in a Christian Eucharist?"It permitted the state of Oregon to prohibit the use of peyote, not excluding its use in a religious ritual. Presumably, a state could do the same for wine, as long as it prohibited its use by everyone, not just Christians. As a political matter, the site would almost certainly grant an exemption for religious uses, as the federal government did during Prohibition. In a later case, decided under th RFRA, the Supreme Court decided that the federal government could not bar the small UDV church from importing a tea containing a different psychedelic substance (DMT) for use in its religious ceremonies, even though that substance is prohibited from use by anyone in th USA.As I understand the Court's position, RFRA is unconstitutional as applied to the states. That suggests that they would uphold a state law prohibiting the use of DMT by anyone, not excluding its use in religious ceremonies.

Sorry, the auto-correct on my iPad created some typos, but I think you can understand them.

I am not a lawyer, so I'm not going to comment on any of the specific legal issues raised above. but I have done some work in constitutional law and federal courts. Perhaps for the non-lawyers who read this, the following points may be of some use.1. Thus far, the mandate in question is not yet in force. Indeed, what it would require is not yet fixed. So there is no room yet for anyone to bring a case claiming to have suffered some wrong. At tis point there is not yet anything for any court too decide.2. The bishops fear that there might be a mandate that adversely affects them and the religious practice of some citizens, Catholics and otherwise. So they want to have legislation that precludes any mandate they would find harmful. So their recent document, with its call for a"Fortnight for Freedom" among other things, has to be construed as a political campaign that, so long as there is no offending mandate in force, aims to influence legislation. 3. So far as I know, neither the USCCB nor any other group has proposed specific legislation to deal with this matter. Apparently there was some proposal that some legislators proposed but it was dropped for lack of support. I don't know what it contained. So at this point the USCCB is campaigning against an anticipated harm and has not proposed any specific legislative protection against that anticipated harm.4. There is nothing objectionable about the USCCB's effort to forestall such harm. But it wopuld be clarifying if we had some idea of the legislative remedy the USCCB wants to have in place.Unless I am mistaken about some of these things, I find the way the USCCB has gone about its campaign, talking about tyranny, a war on religion, etc. and leaving the impression that the president and the leadership of the Democratic Party seek to impose unwarranted conditions on the labor practices of Church, is seriously defective. At the very least, it calls on Catholics to take political action now against a still undefined mandate while itself not specifying what protection they would put in place.If I'm wrong about any of this, I'm sure someone will let me know.

"1. Thus far, the mandate in question is not yet in force. Indeed, what it would require is not yet fixed. So there is no room yet for anyone to bring a case claiming to have suffered some wrong. At tis point there is not yet anything for any court too decide."The Becket Fund has brought four cases for four different institutions. So far, the government has asked that the first two be thrown out because the matter is not yet ripe (and other reasons)".

John Hayes, thanks for the correction. Is the mandate in force at this point?

The contraception-coverage mandate is part of the Obama administration's regulations, which are currently being revised. Until the revised regulations are issued, we will not know the exact final wording of the regulations regarding the contraception-coverage mandate.

"3. So far as I know, neither the USCCB nor any other group has proposed specific legislation to deal with this matter."The USCCB supports the "Respect for Rights of Conscience Act". Here's their letter:, that bill says that everyone is exempt from providing or paying for anything required by the ACA if doing that is contrary to their religious beliefs or moral convictions's a very broad exemption and is unlikely to pass the current Senate.It was turned down once when Sen. Blunt tried to attach it to another bill as an mndmnt but could be Bought up again.

Thomas Farrell, that's true for the institutions in the Becket cases and most religious organizations other than churches, etc. They have until at least August 2013 to comply with whatever regulations applicable to them are issued in the meantime. The regulations for everyone else are final and compliance begins in August of this year (2012).

m. j. Kelley ==What are the exceptions to the Smith general principle which Smith itself allows?Might it be that Smith is simply self-contradictory? I mean that it says both 1) criminal laws trump religious practices and 2) Smith allows some exceptions to this principle.

Thanks to Hayes and Farrell. If the bishops are supporting a bill that says "that everyone is exempt from providing or paying for anything required by the ACA if doing that is contrary to their religious beliefs or moral convictions" then it is hard to see how any reasonable person could support the Respect for Rights of Conscience Act." All sorts of people profess, sincerely or otherwise, all sorts of religious beliefs or moral convictions. All sorts of employees would be at the mercy of their employers' professed beliefs or convictions. We know today that there are times when jobs are very hard to come by. It's an employers' market. Why wouldn't some employers find reason to claim conscience protection as a way to get free from any number of ACA provisions?

John Hayes: Thanks for adding those clarifications regarding my statement.

Bernard Dauenhauser: Please remember the the U.S. Senate is controlled at the present time by Democrats. The Democrats in the Senate are not going to pass the Respect for Rights of Conscience Act.The 2012 elections could change the control of the Senate. It's also possible that President Obama will not be re-elected.

I just took a look at the Respect for Rights of Conscience Act. Many times since the beginning of this whole debate, there have been hypotheticals about Jehovah's Witnesses providing insurance that would not cover blood transfusions or Scientologists providing insurance that would not cover psychiatry or psychiatric drugs. It seems to me the Respect for Rights of Conscience Act would guarantee their rights to do so.

This is a vital contribution to the discussion. I am particularly grateful for the way that you highlight the rhetoric of the bishops. I have tried to make a similar point and compared their rhetorical excesses to Neuhaus' "End of Democracy?" stuff on the judicial branch.

Perhaps one of the reasons the bishops don't treat Smith and Roe the same is because they have radically different results vis a vis future legislative efforts. Smith encourages legislative efforts to create religious accommodations, thus allowing the bishops and others to wield their influence in congress and state legislatures to get the religious freedom results they want. Roe, on the other hand, prevents legislation that the Bishops want from being enacted (on at least makes a case overturning such legislation inevitable). They can work around Smith, but not Roe.

Thomas Farrell, I do know the political realities you refer to. I still find it un reasonable for anyone, bishops or otherwise, to support the present version of the Respect for the Rights of Conscience Act that effectively allows all sorts of employers to have unrestricted opportunities to override any or all worker protections that are inscribed in ACA. As we all know, if i can claim that something that inconveniences me does so because I can say that it violates my conscience, I'm quite likely to avail myself of this opportunity. Why the bishops would consider this to be tolerable in today's world is beyond me.

"WHY NOT CRITICIZE SMITH?"No reason not to criticize it, but, as with Roe v. Wade, the Supreme Court has decided that Smith is what the constitution requires - and the only way it can change is if the Supreme Court decides to change its own decision. They are not much moved by criticism. Congress cannot change the constitutionality of Roe v. Wade nor Smith by passing legislation, short of starting the process of adopting an amendment to the Constitution and getting the states to approve it. The RFRA represents the limit of what Congress can do - pass legislation that applies only to federal actions, not state actions or private actions - those are still subject to Smith.

@Bernard Dauenhauer: Is it really so "unreasonable" to return to the status quo ante that prevailed for decades and decades until enactment of the ACA (and these mandateed provisions don't go into effect for another year and a half)? Employers and employees negotiate the terms of what is and isn't covered in health plans--surely the government mandates in the ACA aren't the only possible reasonable baseline of health care benefits?@MikeD: Exactly. Whatever one's views about Smith, it doesn't foreclose legislative accommodation of religion (indeed, it invites it and expressly makes accommodation and exemptions primarily a responsibility of political actors). Roe, by contrast, constitutionally preempts the entire sphere (with marginal qualification) of legislative regulation. That seems to me an important difference.

Well, the point is that this is just not very accurate: Without saying so, in the context of religious liberty, the bishops seem to be making an argument based on the spirit of the First Amendment, upon the rights found in its penumbras, upon the spirit of the First Amendment, not its letterAny constitutional scholar knows that the Constitution expressly protects religious liberty but does not expressly protect abortion rights. To argue for robust religious liberty is completely the opposite of arguing for abortion rights. In the latter case, one is forced to divine an abortion right out of generic references to "due process" and the like. But arguing for robust religious liberty does not in any way require the sort of penumbral argument to which you refer. It merely requires looking straight at the text -- the "letter" -- of the First Amendment.

All sorts of employees would be at the mercy of their employers professed beliefs or convictions.Bernard,You seem to forget that at most employers, there is a group of employees who are covered by the plans and simultaneously responsible for designing and implementing them. In addition, the decision makers are employees or even owners who are covered under the same plans. Finally, no employee is a slave to their employer. If they dont like the terms of employment, they are free to leave and find another employer with better terms. It happens all the time. There is no real reason in equity, why employers need to forced by the government to provide certain medical services. In fact, I would not be at all surprised to find one result of the ACA to be many employers dropping medical coverage entirely.

"the Constitution expressly protects religious liberty"It forbids laws that "prohibit the free exercise [of religion]". Smith provides the standard by which it is decided whether any particular law or regulation does that.Even if it is constitutional under Smith, a federal law or regulation might be found illegal under RFRA - but that would not mean that it violates the Constitution.

Cathy,I'm not surprised that the bishops claims are not legally specific. They arent lawyers and their audience is not lawyers. It seems entirely appropriate to me, for them to refer to religious freedom as a constitutional right which is being infringed and leave it at that. And the first amendment text is quite clear and understandable by virtually any reader. The Becket lawyers should be the ones getting into the weeds in their case filings.

Interesting that in Fr. Drinan's legislative history of RFRA he points out that "it met resistance from various Catholic and anti-abortion groups which feared that it could be used to argue for the right to a religiously-motivated abortion".

Not as clear as you think, Stuart Yes the constitution the free exercise of religion--it also prohibits establishment in the very next breath. The working of it out in a way that favors rl is in the "penumbras," the spirit of the first amendment. The district court in MA just said it would be a violation of the EC to grant an exemption to Catholic groups from a generally applicable law.For the record: I am not a textualist. I think Scalia's approach makes no sense hermeneutically. I don't think it saves us. Some say: "Quand on n'a pas de caractere, il faut bien se donner une methode." And that's textualism.I say: Quand on n'a pas de caractere, il faut bien le developper.

Here we go again: The foolish act of attempting to undermine Divine Revelation via human reason. It didn't work in Eden, and it doesn't work here. It's yet another ploy, of course.

" The district court in MA just said it would be a violation of the EC to grant an exemption to Catholic groups from a generally applicable law."I don't think that's what the court said. It ruled on a very specific situation. Excerpting the opinion:"HHS initially implemented the victims services mandate by making grants to nonprofit organizations that worked directly with trafficking victims. In November of 2005, HHS decided to select a general contractor to administer the funds."It chose the USCCB as the general contractor."Pursuant to the award, the USCCB entered into subcontracts with over 100 service providers, many of which are not Catholic institutions. The subcontract included the restriction that funds shall not be used to provide referral for abortion services or contraceptive materials, pursuant to this contract.Since the HHS knew that the USCCB would impose that restriction on subcontractors (it said so in its proposal), the Court ruled:"the government defendants violated the Establishment Clause of the First Amendment to the United States Constitution, insofar as they delegated authority to a religious organization to impose religiously based restrictions on the expenditure of taxpayer funds, and thereby impliedly endorsed the religious beliefs of the USCCB and the Catholic Church."And, in a footnote:7"26 Let me add one final note. This case is not about government forcing a religious institution to act contrary to its most fundamental beliefs. No one is arguing that the USCCB can be mandated by government to provide abortion or contraceptive services or be discriminated against for its refusal to do so. Rather, this case is about the limits of the governments ability to delegate to a religious institution the right to use taxpayer money to impose its beliefs on others (who may or may not share them).

Not as clear as you think, Stuart Yes the constitution the free exercise of religionit also prohibits establishment in the very next breath. The working of it out in a way that favors rl is in the penumbras, the spirit of the first amendment. It's perfectly consistent with the text and letter of the First Amendment to say that 1) the First Amendment broadly protects religious liberty while 2) not allowing the government to favor any one particular religion or subsidize religion. It is not competent lawyering to suggest that this combination of positions requires any penumbral reasoning remotely akin to what was used in Roe and Griswold.

"the Constitution expressly protects religious liberty"It forbids laws that prohibit the free exercise [of religion]. Smith provides the standard by which it is decided whether any particular law or regulation does that."John Hayes --There is a lot of talk of the Court "legislating". Can't the opposite happen -- if Smith defines the standard of deciding between religious freedom and other constitutional rights, doesn't that usurp the power of the Supreme Court? Granted, the SC can overthrow Smith. But in the meantime isn't it doing what the Court is supposed to do?

OOPS Big correction: when I said "Smith" in my last post I was actually thinking of the Religious Fr4edom Restoration Act (RFRA), not the Supreme Court Smith decision. See Cathy's new post about Smith.

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