Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Monday, February 13, 2012

Steve on the Bishops on the HHS Revision, and on Certain Supreme Court Justices

Many thanks to Steve for his observations in re my Sunday query. I'll think more on the matter in light of his observations, as well as such others as might be offered by others; and if anything provisionally good comes of that thinking I'll come back to the matter here.

While here at present, however, I'd also like quickly to take up Steve's final point. For I've wanted to say something similar now for the last couple of weeks, but have refrained from so doing in order to keep my points simple until time might permit broader, while one hopes still relevant, observations on our courts' first amendment (1A) jurisprudence. Two observations for now, then:

First, the term 'accommodation' as used in 1A contexts, again if I've got my recent religion clauses history right, stems from cases like Yoder in which courts have found in favor of religious groups seeking exemption from laws of general application. I'm accordingly a bit queasy about uses of scare-quotes round the term in some of our recent posts. For these might be taken to suggest that the employers of those punctuation marks are attributing to the President some arrogant belief that he is doing something magnanimous or supererogatory, rather than something for which he as a constitutional lawyer knows there is precedent - under the Court-supplied term 'accommodation' - in free-exercise-protective caselaw. I assume that the actual reason for the scare-quotes as found here thus far has to do with skepticism as to how accommodating the revised HHS mandate actually is. But of course in that case I am still hoping for verification in actual regulatory text that the skepticism - in which I would joint under previously specified circumstances - is indeed warranted.

Second, it seems to me that Steve might be right that the least accommodating Supreme Court Justice, where calls for exemption from neutral and generally applicable laws are concerned, has in recent decades been Justice Scalia. (No?) Surely the opinion in Employment Division v. Smith is the very type of the eye-rolling, 'gimme a break' style expression of impatience with putative 'special pleading' on the part of religious organizations. Unless that be the Justice's imitation of Desi Arnaz singing 'Babaloo' when talking about the Church of Lukumi Babalu Aye case of the early mid-'90s, to a mixed audience of which I had the mixed fortune of being a member.

But Justice Scalia might not be alone now, either. For in seeking to distinguish rather than overturn Smith, with which our Court's recent Hosanna-Tabor decision seems to rest in considerable tension, Chief Justice Roberts informs us that sacramental use of peyote as in Smith, unlike firing a disabled teacher notwithstanding the anti-discrimination requirements of the Americans with Disabilities Act as in Hosanna-Tabor, amounts to 'only outward physical acts.' What ever we might make of that not altogether convincing distinction under the precedents, one wonders whether the Chief Justice might now be willing to say the same of some hypothetically reinstated rendition of Prohibition not prompted by anti-Catholic Protestants as was the earlier one, were it enforced against sacramental wine-imbibing on Sundays along with other imbibing on other days. (I'd like to think he would find a way to enforce 'accommodation.')

Like Steve I'm inclined to observe, then, that insufficient respect for religious ethics and practices in the enforcement of neutral and generally applicable laws is as 'bipartisan' or non-partisan as was the recent concern over rendition 1 of the HHS mandate.


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