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.

Friday, October 31, 2014

Here we go again with the "Catholic justices imposing their religion" thing

(Revised)  I was sorry to learn, from this piece, that at an event featuring some of the very best journalists covering the Supreme Court (includes Bob Barnes, Tony Mauro, and Lyle Denniston), an appearance was made by the tired (and unfair) complaint that the annual "Red Mass" in Washington D.C. is (in Mauro's words) a "regularized ritual" reflecting the fact that "[t]he Roman Catholic Church, maybe more than any other churches, has made a project of trying to impose its doctrine on the judiciary and other parts of the government.”  [Note:  I was happy to learn, via Twitter, from Mr. Mauro, that he was referencing someone else's views, and not endorsing this statement himself.]  The Mass is a "ritual" of course, but the sentence about this alleged "project" is unfair, inflammatory, and unworthy, and traffics in some of the (to put it mildly) less-attractive themes in American history.  To propose is not to impose, and to support the enactment of laws that one believes to be consonant with human rights, human dignity, and social justice -- that is, to, like the Catholic Church, advocate for immigration reform, social-welfare programs, an end to capital punishment . . . and religious freedom and legal protection for unborn children -- is not to "impose doctrine."

Another participant, CUA's Marshall Breger, said, with respect to the Hobby Lobby case, said "the notion that the Hobby Lobby owners could be implicit in a sin perpetrated by the company’s employees, in this case taking birth control, was probably rooted in Catholic doctrine."  But, this "notion" was the belief asserted in the litigation by Hobby Lobby and their non-Catholic owners, the Greens.  The Catholic justices did not posit or endorse the belief, but simply note that it was sincerely held and, as a result, RFRA requires careful scrutiny of government-imposed burdens on that belief.  Nothing nefarious -- or even distinctly Catholic! -- about that.

Finally, Lyle Denniston -- whose coverage of the Court is, again, outstanding -- fell short of his usual standard when he said (assuming he is quoted accurately in the piece):   “To accept the notion that a corporation, which is an artificial being, can have some manner of religious belief system transferred to it by its owners, aside from being pretty close to ludicrous, is highly debatable in terms of social philosophy."  Actually, the notion is unremarkable and, in any event, this wasn't really the notion that the Court was asked to accept (see, e.g., pp. 20-25 of the Court's slip opinion).  As Justice Alito explained, neither "corporate" status nor the profit motive categorically excludes a claimant from RFRA's protections.  The question is not whether a corporation has a soul (as some have put it) but whether a law's application to a corporation can impose a substantial and unjustified burden on someone's religious exercise.  And, as the Court explained, sometimes it can. 


Garnett, Rick | Permalink