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June 07, 2012

A quick response to Vincent Miller on religious liberty, Smith, and Scalia

Vincent Miller has, at America, a thoughtful post -- which includes some constructive criticism -- regarding the Bishops' religious-liberty efforts and statement.  In two places, though, I think he's not quite right. 

First, he writes that, although the "4 part test in that mandate is ill conceived" it has a "relatively minor legal status. It is neither a law nor a legal decision. It is merely a
regulatory definition. The administration has stated in writing it has no intention of using it as a precedent for any other decision. Of course it could become part of a legal decision. Indeed, that is one likely outcome of the current lawsuits."  I'm not sure why Mr. Miller thinks the test has a "relatively minor status" or what it means to say that it is "neither a law nor a legal decision."  It is contained in an operative regulation and it has very significant real-world effects.  It is not "legislation", but it is -- from the perspective of those regulated, anyway -- the "law".  And, the fact that the administration has said that it has "no intention of using it as a precedent" is small comfort.  If this is true, one wants to ask "why not?"  And, this very definition did serve as a precedent:  The administration borrowed it from the California contraceptive-coverage mandate.  It is quite reasonable to worry that this definition will be replicated in other regulatory contexts and I think it is a mistake to be confident that it will not.

Second, with regard to Smith, Mr. Miller -- like many others -- contends that the bishops' efforts fall short to the extent that they do not more explicitly point to the decision in Smith as a big part of the problem.  He writes: 

There is, however, another decision regarding religious freedom that is truly
epochal in its significance and scope that is completely ignored by the
document. The 1990 Supreme Court decision in Employment Division v. Smith
replaced the “compelling state interest” measure for state interference in
religious freedom with a principle that “generally applicable” laws that
incidentally result in the “prohibiting the exercise of religion” do not require
religious exemptions under the First Amendment. . . .

. . .[I]t is more than striking that his legal revolution receives no mention in the
document.

“Our First, Most Cherished Liberty” would be quite a bit more honest,
coherent, and effective if it discussed these other profound obstacles to its
goals: the divergent philosophy undergirding the American Constitution and
Scalia’s watershed reorientation of the jurisprudence of religious liberty.

But, the claims that Smith constituted "Scalia's watershed reorientation of the jurisprudence of religious liberty", that it constituted a "legal revolution", and that it was "truly epochal" are inaccurate and overstated.  As I wrote a few days ago:

Some make this claim because they believe that Smith represents a wrong interpretation of the First Amendment, I know, but I think that some make it just because it's kind of fun to put Justice Scalia in the religious-freedom-villain hot-seat.  Still, as I''ve probably said too many times, the claim is wrong.  (For an elaboration of my view, go here.)  Smith was contestible, but I think correct, interpretation of a piece of positive law -- one that returned the Court's doctrine to where it had been for most of the previous century -- that, certainly, makes it possible for elected officials to harm religious liberty, but also authorizes and encourages those officials  elected officials to respect and accommodate religious liberty, to the extent possible.  Smith is a "who decides?" case (ed.:  aren't they all?  RG: yes, yes, I know . . . .), not a "religious freedom should lose to state interests" case.

A careful look at what was actually happening in the Supreme Court -- from Reynolds to Sherbert to Yoder to Smith -- reveals that it was Sherbert and Yoder, not Smith, that were the outlier cases.  Should governments generously accommodate religious objectors?  Of course . . . to the extent possible, consistent with public order and the common good. Smith does not say or suggest otherwise.

I should end this, though, by saying that Mr. Miller's engagement with Michael Moreland's work on subsidiarity is thoughtful and welcome.

Posted by Rick Garnett on June 7, 2012 at 05:18 PM in Garnett, Rick | Permalink

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