April 15, 2012
More on Smith and the USCCB Statement
Michael has already pointed out the inaccuracy of the complaint that the Bishops' statement on religious liberty is, or could reasonably be regarded as, "partisan", even if, as some have pointed out, it could perhaps have been improved by more explicitly discussing the challenges faced by Muslims in the United States. (DIsclosure: I serve as a lay consultant to the Ad Hoc Committee for Religious Liberty, which produced the statement.) The statement cites a number of (though certainly not all) troubling events, laws, decisions, and trends -- that is, it cites to evidence and facts -- and criticizes policies supported by Republicans and Democrats alike. It emphasizes strongly and clearly the fact that religious liberty is a human right, enjoyed by all, and that it faces challenges -- and requires defense -- around the world and from many directions, from "left" and "right" alike.
I'm afraid it is the charge itself, and not the statement, that appears partisan. The appropriate response, it seems to me, of someone who regrets the possibility that an increased focus by Catholics on the importance and vulnerability of religious liberty, correctly understood, might prompt some of those Catholics to vote for one party, rather than the other, is to challenge the other party to improve its understanding of, and sensitivity to, religious liberty.
With respect to the Court's Smith decision, Marc has already explained some technical aspects of post-Smith Free Exercise doctrine that are sometimes overlooked or forgotten. In addition, though, it should be emphasized that Smith -- which, all agree, places some obstacles (though perhaps not insurmountable ones) in the path of a Free Exercise Clause-based legal challenge, in court, to the preventative-services mandate -- is not contrary to or even in tension with the Bishops' arguments that the mandate is inconsistent with our nation's professed commitment to religious liberty and that a broader exemption would be more in keeping with (what Justice Douglas once called) "the best of our traditions."
Smith does not stand for the proposition that religious accommodations are bad, undesirable, or unconstitutional. Quite the contrary: The decision invites religious accommodations. It holds, however, that because exceptions from otherwise-generally-applicable laws are not always possible or justified (see also, e.g., Dignitatis humanae), and almost always involve balances and trade-offs, they should be created by politically accountable actors rather than federal judges. (In so holding, I believe the decision is sound, as I explain in this short essay. For a more detailed discussion, see this article by my colleague, Prof. William Kelley.) So, the Bishops are urging all of us, to urge our politically accountable representatives, to do precisely what Smith expects them to do, i.e., to accommodate religion generously, in a way that reflects our underlying commitment to the good of religious freedom.
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