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.

Thursday, August 1, 2013

Dane on the Deep Structure of Conflict Reflected in the Mandate

Professor Perry Dane has a thoughtful comment on the competing positions in the contraception mandate controversy. As someone who is partial to an analysis that emphasizes irreconcilable conflict in religious freedom disputes, I found Perry's short piece useful. But I wonder whether, in light of the fragment that I've quoted from his conclusion below, one could argue that "wholesale" conflicts about the Free Exercise Clause and religious exemption more broadly have become more common in part because the "wholesale" conflicts pertaining to the Establishment Clause have been steadily but inexorably increasing. Wholesale, not retail, conflict seems to be the order of the day in religion clause law:

I have written elsewhere that defining the relationship between religion and the civil state has both a “wholesale” and a “retail” component. The Establishment Clause defines general, wholesale, boundaries between church and state. Religion-based exemptions can then adjust those lines in specific, retail, cases to take into account the convictions of specific religious traditions. The “wholesale” work in defining the church-state dispensation goes beyond the Establishment Clause, though. It also has important political and cultural pieces, and, as here, can find its way into arguments over specific claims of religious liberty. Thus, both sides in the contraceptive mandate are venting wholesale grievances, suggesting that the other side has simply overreached beyond its proper competence or domain.

The truth, though, is that this controversy is not amenable to wholesale treatment. In this and many other areas, there are no sharp boundaries between the proper spheres of activity of church and state. Though we can and must draw certain lines, particularly where the work of the Establishment Clause is concerned, in many contexts the competencies of church and state simply overlap. And that leaves only the mundane, steady work of trying to accommodate each to the other as best, and as fairly, as we can.


DeGirolami, Marc | Permalink


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Thanks for the link. I suggest a connection among Dane's essay, Douglas Laycock's new article on the contraceptives mandate, and a 1992 Comment by Delaware lawyer Joel Friedlander at http://walshslaw.wordpress.com/2013/08/02/dane-laycock-friedlander-and-kulturkampf/. Friedlander's Comment (available at http://www.bmf-law.com/publications/constitutionandkulturkampf.pdf) may be of interest to MOJ readers.

Posted by: Kevin C. Walsh | Aug 2, 2013 11:42:24 AM