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February 09, 2012

The Rhetoric and the Reality of Employment Division v. Smith

This column by Linda Greenhouse offering a defense of the HHS contraception mandate begins mistakenly, in my opinion, when it claims that the "obvious starting point" in considering the question of the claims of conscience being made against the mandate is "the 98 percent of sexually active Catholic women who, just like other American women, have exercised their own consciences and availed themselves of birth control at some point in their reproductive lives."  I think that is not the right place to begin, but it's territory that has been covered at length here and elsewhere.

The more interesting point that Greenhouse makes is that Employment Division v. Smith demonstrates that the claim made by those who are opposed to the contraception mandate -- a claim "to conscience that trumps law" -- is one which the Supreme Court emphatically rejected in Smith.  "[T]hat," Greenhouse writes, "is not a principle that our legal system embraces."

Both the way of posing the proposition and the conclusion seem, again, mistaken to me, but let's concede the former and explore the latter.  Suppose it is really true that we are dealing with a claim that "conscience trumps law."  "Our legal system," in fact, "embraces" just this claim in a great variety of situations.  If it did not, the Roman Catholic Church would be compelled to appoint female priests; it would be forbidden from offering sacramental wine to children; religious communities would be compelled to hire those who don't share their religious commitments.  Moreover, as Greenhouse recognizes later, "our legal system" responded to Smith by passing some statutes which make it highly likely that in some situations, "conscience trumps law."  So it simply is not true that "our legal system" does not make any room for the protection of conscience when it conflicts with law.

Greenhouse's praise for Smith also represents, I think, a widespread misconception about Smith.  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 Michael 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.  

Posted by Marc DeGirolami on February 9, 2012 at 09:02 AM in DeGirolami, Marc | Permalink

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Ms. Greenhouse seems confused on at least two points.

First, she tries to make hay of the fact that the conscience/choice of many adherents (those not following Church teaching) are not being vindicated, and, rather, an institution's conscience is trying to be vindicated. So? That institution (comprised of people, btw) has rights, too.

Second, she writes: "The question would be whether a church that has failed to persuade its own flock of the rightness of its position could persuade at least five justices." These are two different questions that she is treating as one. Question 1: is abstaining from contraceptive a good thing? Maybe, maybe not. The Church thinks so; others think not. Question 2 (a different question): in America, can the government compel us to act against our religous beliefs? Nope.

Posted by: A reader | Feb 9, 2012 11:37:18 AM

It wouldn't surprise anyone to learn that Greenhouse believed Smith to be wrongly decided, would it?

Posted by: Thomas | Feb 9, 2012 12:50:15 PM

The fact that Greenhouse's column spends so little time discussing RFRA, where the real action will be, is revealing. As I've written elsewhere, Greenhouse buries the lede by spending so little time on RFRA. And then when she turns to it, she leaves out the part of the analysis that the Obama Administration will clearly not be able to satisfy, namely the "least restrictive means" component.

Posted by: Kevin C. Walsh | Feb 9, 2012 9:23:58 PM

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