Thursday, May 31, 2012
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.