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, May 28, 2012

A Poor Editorial

This is a silly and uninformed editorial.  There are, of course, differences of opinion about the political wisdom of the HHS mandate and resistance to it.  But this editorial is about the legal challenge to the mandate.  And it calls that challenge "built on air."  Actually, it is built on the Constitution and a federal statute, and we'll soon see whether those foundations remain solid enough to support it.

The editorial does mention the Constitution and the federal statute.  But what it says misrepresents both.  It also fails to mention that the original mandate -- and not the putative change in plans alluded to by the President in February -- is at present the law.  The editorial uses Employment Division v. Smith as an argument that the government ought not to accommodate dissenting religious conscience.  And it makes the following colossally stupid statement about RFRA: "In 1993, Congress required government actions that “substantially burden a person's exercise of religion” to advance a compelling interest by the least restrictive means. The new contraceptive policy does that by promoting women’s health and autonomy."  Can anybody figure out how the second sentence follows from the first?  Did anyone at the Times think to check with a lawyer before writing this?  How about a law student?

There are arguments to be made in defense of the mandate.  Surely the government will make them in court.  But this editorial neither makes nor even references any of them.  What an embarrassment.


DeGirolami, Marc | Permalink

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Thank you, Marc, for this. I just finished giving two days of lectures in the Peoples Republic of China. This is the third year in a row that I have participated in this program. Even though my presentations are about standard public international law, my remarks must be guarded and carefully presented. I know that even though my audience is essentially Westerners, I am sure others are listening. I realize that the State here desires to control information. For example, some Catholic websites many of us visit are blocked. However, the MOJ is not! Perhaps only for the time being. In any case, I see how the PRC attempts to control the information to which the public has access. It stride me that this editorial tries to do the same by telling people what they need to know even though the truth requires more. RJA sj

Posted by: Robert John Araujo, SJ | May 29, 2012 12:30:11 AM