May 31, 2012
Winters responds to Garnett
Here, Michael Sean Winters responds to a recent post of mine about the Smith case. At the end of the day (putting aside the question of how to read Dignitatis humanae), I think the disagreement between Winters and I comes down to (i) whether it is true that it was Justice Scalia, rather than those who ratified the First and Fourteenth Amendments, who is responsible for the rule in Smith and (ii) as a general matter, do we think that the challenging project of accommodating religious objectors to the community's generally applicable laws is one that is best assigned to politically accountable legislatures (who are probably better situated than courts to collect the information necessary for cost-benefit judgments) or to constitutional courts. And, in my view (and in Justice Scalia's), to opt for the former is not, in any way, to disdain religious freedom.
Thanks, of course, to Winters for the detailed response.
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Prof. Garnett - I wanted to post this in response to your comment re: the Commonweal articles. I certainly agree with many of your sentiments, but with respect to your last paragraph, I'm not sure if you've been reading dotCommonweal, but their analysis, particularly that of Grant Gallicho, has been, in my opinion, precisely what you hoped it would not be. Mr. Gallicho has all but stopped short of accusing Dolan, Wuerl, Lori et. al. of lying about the mandate in order to trump up some "injury" over which to sue. Lisa Fullam (a regular contributor) said in a comment thread that the Notre Dame suit and others was nothing but a coordinated effort to deprive Pres. Obama of a second term. I hope their series of articles proves better than what's already been posted.
Posted by: Josh | May 31, 2012 1:10:02 PM