Sunday, May 22, 2016
Michael Brendan Dougherty has an essay posted called "Why the Little Sisters of the Poor Shouldn't Settle for a Stingy Exemption." The piece echoes some things written by others over the past few years, making the basic point that arguing for exemptions from generally applicable laws can, all things considered, be bad for religious freedom (because, for example, such arguments tend to focus merely on the "sincerity" of the "beliefs" being burdened, rather than on the truth of the matter). He writes:
It is time for plaintiffs in religious liberty cases and for their advocates in the culture wars to try a different strategy. As the administrative state reaches deeper into our lives, and as it begins to provision positive rights to people through other private actors, the number and diversity of religious liberty cases are only going to grow. Right now, religious people ask for "exemptions" and "accommodations" to pursue their own goals because those goals are "religious." And they are granted narrow avenues to pursue these ends according to their (presumably quixotic) personal beliefs. Instead they should argue that their beliefs deserve the respect of the law because they are true, and that their actions deserve legal protection because they are good. . . .
Fair enough. Someone should make the argument -- notwithstanding the very small chance of the argument gaining any traction in our present circumstances -- that the Little Sisters (and others) are not only "religious" in believing, but correct in believing, that, say, the contraception-coverage mandate is unjust. (And, I definitely agree with Dougherty's assessment of Judge Posner's performance at oral argument in Notre Dame's case.)
Still, the givens are the givens, and the Little Sisters (and their lawyers) have to use the arguments and categories that are available, and try to secure from the (overreaching) state the concessions they can get.