HHS vs. OWS: On the Prudence in First Amendment Jurisprudence

One of the loveliest upshots of that Friday and weekend work with the New York Fed that I mentioned two days ago has been the opportunity that it has afforded to spend time with, get to know, and ultimately join some of the banking and economic policy committees of the OWS movement.  (Zuccotti Park is but two blocks from the Fed and my little Wall Street apartment.)  In this connection, like very many people across America and the world, I thought Mayor Bloomberg's 'crackdown' on the movement this past November wrong-headed.  One upshot of that conviction was this OpEd published in the New York Daily News at the time, a longer rendition of which was posted on Dorf on Law here. 

It strikes me now that there is an instructive analogy to be drawn between that case and the case of the first rendition of the HHS's mandate - 'Mandate 1.0' - that we've all discussed here over the past several weeks.  The link has to do with the 'prudence' one might hope to find in such government actions as sometimes implicate First Amendment jurisprudence or the values given expression in that jusrisprudence.  Pursuant to this prudence, wise government functionaries accommodate exercises of First-Amendment-implicating freedoms even when not, strictly speaking, constitutionally required to do so.  Why do we hope, as I put it, to find this form of prudence in government decisions?  I think there are are least two complementary reasons.  One is that our political society at large often learns much from that 'witness' which is the flowering and flourishing of 'alternative' takes on many practices and lifeways that majorities have come to take for granted.  Another is that individual citizens often grow and flower as human souls both through witnessing and through participating in such experiments - recapitulating, in their less fateful and momentous but nevertheless important ways, the transformative experience of the 'upper room.'   

For my part, I've found the inspiringly earnest, insistently pluralistic, and above all the determinedly democratic egalitarian culture that flowered in Zuccotti Park a particularly salutary case in point - so starkly so that I very much hope those who are reading this post will read the descriptions provided in the two articles linked to above.  (The full length version at Dorf on Law includes brief description of the 'Tree of Life' at which multiple faiths were officially represented and honored in Zuccotti, including that of the many members of the Catholic Worker movement who were present throughout the 'occupation.')  But likewise important cases in point are, quite often, the lifeways and worldviews lived and given 'witness' by the healthcare-providing, education-supplying, and other institutions founded by our many faith communities.  Hence my provisional welcoming, along with that by many others, of the HHS's recent announcement that Mandate 2.0, once more fully specified, will indeed be accommodative.  I await that further specification as eagerly as I do the return of the 'Occupiers' to Zuccotti Park come this spring.