Friday, May 29, 2015
At Distinctly Catholic, Michael Sean Winters has a post called "Remember, Scalia is the culprit", in which he (among other things) responds to the concerns expressed (appropriately, in my view) by a friend of his about Judge Posner's opinions in the ongoing Notre Dame litigation. (On those opinions, read -- for starters -- Kevin Walsh.)
Winters notes that the federal RFRA, which Posner interpreted and applied (incorrectly, in my view), was a response to the Court's Smith opinion, which was authored by Justice Scalia. (I would add that, in my view, it makes more sense to read Smith as acknowledging what the Court had really been doing for the previous three decades -- except in Yoder -- than as dramatically departing from longstanding precedent or understanding.) He concludes with this:
I do not expect, and I would not applaud, bishops denouncing Justice Scalia from the pulpit. But, when an advocate for religious freedom, bishop or otherwise, denounces Obama and leaves Scalia unscathed, you know that there is an agenda at work and it does not have to do with protecting religious freedom. It is a political and legal agenda. That may be fine for the Becket Fund. It may be fine for GOP presidential aspirants. It should not be fine for the Church.
I respectfully disagree. It matters, a lot, when evaluating what actors do, what those actors' roles empower and authorize them to do. Justice Scalia (and the other justices who joined his opinion) believed that the First Amendment's Free Exercise Clause is given, not made, and that it does not authorize courts to create exemptions from generally applicable laws that burden -- so long as they don't target -- religiously motivated practice. This belief is not accepted by all experts, to be sure, but it is accepted by some and is, at the very least, plausibly rooted in history and practice. (For more, see this short paper of mine.)
In contrast, President Obama (or any other President, or any other elected or appointed official who is exercising the discretion that they in fact possess to accommodate -- generously, stingily, or not at all) should be seen as making a choice -- he could accommodate religion more, and better, but has decided that so much accommodation, but not more, is appropriate -- and not as limited in his choice by the given-not-made meaning of the Constitution. (There are some First Amendment limits on accommodation, but they are not, in my view, implicated in the HHS mandate debate.)
"The Church" has no expertise in constitutional law and so -- while she certainly can criticize, on moral grounds, the rule that Justice Scalia believes our Constitution sets down -- it seems appropriate not only for (the great folks at) the Becket Fund but also for bishops, etc., to distinguish between judges who interpret the positive law and officials who could accommodate religious believers and respect religious freedom but choose not to.
Now, all that said, I think Winters is correct to remind his friend, and his readers, that the business of accommodating religious objectors to general laws necessarily involves making decisions -- debatable judgment calls -- about what to "count" or recognize as a "substantial burden" or what to credit as a "compelling" government interest. Laws like RFRA do not, and could not plausibly, give to religious objectors an automatic trump or veto. Their claims have to be evaluated and assessed, and this process will not be neat and mechanical. The problem with Posner's opinion is not, as I see it, that he set about determining what, in fact, the law requires Notre Dame to do, but that he did so in a way that is not consistent with the precedent (Hobby Lobby) that the Court told him to apply.