Yeah, I think that's a viable argument. I'm not persuaded -- I see an implication in the free exercise of religion here, but then again, I thought Smith was wrongly decided and I guess I haven't dropped that torch yet.
My big problem with the Smith case has always been how to define a "law of general applicability." Any law is generally applicable. It's illegal for me to use peyote for recreation; it's illegal for a Native American to use it for religious communion. The case that would be really questionable after Smith is Church of Lukumi Babalu Aye v. City of Hialeah (1993) 508 U.S. 520. The Santeria church prevailed in that case because it had facts showing that the city specifically enacted a law against animal cruelty to shut it down. But under the reasoning in Smith, the city could say, "Hey, the Catholics can't do an animal sacrifice, either." Now, we'll likely never reach that point thanks to the RFRA -- but if Congress ever repealed the RFRA, I think the Santerians would be S.O.L. because Smith says that a "law of general applicability" like criminalizing cruelty to animals does not ever even implicate the Free Exercise clause; it's just not a concern at all.
That can't be right. If a law imposes a signifciant burden on a legitimate religious practice, we've got a Constitutional problem. If Catholics couldn't dispense communion wafers because a food inspector had not issued a restaurant license to the church, or the deacons hadn't been certified by the Alcoholic Beveral Control Board to card people before giving them a sip of the Blood of Christ, that would be a problem. Catholics are reasonably politically popular (these days, although that hasn't always been the case) so these scenarios seem laughably unlikely. But in the world of Constitutional law, we often deal with unlikely hypotheticals -- like the Obama Administration commanding a doctor at Georgetown Medical to dispense an abortifacient. So in a non-RFRA world, would you apply the rule of Smith to say that yes, the Health Board could theoretically shut down the ceremony of the Eucharist?
Alternatively, arguing on behalf of the government, could you shoehorn it in with the taxation power, as you suggest? "Do this, or you get taxed, $2,000 per employee." After all, once we're talking about tax dollars, we're beyond the realm of religious objections because it's the government's money that's being spent, not yours, and literally no one in the country has standing to object on religous grounds to how tax money is being spent, at least once it reaches the Executive Branch. This, I think, could be a very strong argument indeed. As I'll point out in a long-planned installment of the Great Cases that I'm now beginning to put together, taxation is in quite a lot of ways the most pervasive and unchecked power in the Constitution over individual behavior.
But again, if we hypothesize a tax targetted at certain kinds of people (say, employers who refuse to provide contraception coverage) and then make that tax punitively high (say, $75,000 per employee) then are we really in a world of tax policy incentivizing certain kinds of behavior, or have we now crossed some sort of threshold into, say, involuntary servitude, or takings? I don't know when that line gets crossed, but I believe that there must be such a line.
I am not aware of any action taken by this Administration to compel a religious entity to perform a service -- whether that be a same-sex wedding or an abortion or the dispensation of abortifacients -- against its will. I am aware of at least one state court that found a violation of state law in the denial of facilities rental when a church allowed one of its pieces of real property to be classified as a public accomodation so some lawyers made some money and a gay couple got to make a point and some politicians got a talking point. (The church later re-applied for a different kind of permit to re-classify the facility as private, and it can legally exclude gays now, just as Jesus intended, so the universe, or at least that portion of it that's in New Jersey, is in cosmic harmony once again.) But that was a state court, not a Federal official.
Experience demonstrates that comedy can be funny, or preachy, but only very rarely both. I suspect art is the same way: it can be powerful and moving art, or it can convey a political message, but only rarely can it do both. So it's not the fault of conservative artists, or liberal artists, that they so rarely achieve both good art and a good message in the same work -- it's inherently a very tall order to achieve both.
Perhaps as the passage of time removes the political context of a work of art its technical mastery and artistic elements can become more prominent. We can look at paintings from the Renaissance and not see the politics of the day, since those politics matter to us almost not at all, even if contemporaries would have dismissed the painting as propaganda.
And now I've actually gone so far as to offer my own post on the contraception coverage issue, one which I now consider to suffer from a theoretical flaw.
I find it interesting that no one has pointed out what half a day's reflection caused me to consider the biggest flaw in my own argument: why do I assume that the RCC has any rights under the Free Exercise Clause at all? After all, the Constitution recognizes and protects the rights of individual people, not of religious institutions or corporations. The RCC is not an individual person.
To get around this, we'd need to find a hospital administrator at a Catholic hospital who had a personal religious objection to having to actively participate in the funding of contraception. And at that point, we're at least a large step closer to the Bob's Catholic Car Wash scenario raised by Will Truman above.
I'm not aware of that ruling or courts upholding it. Doesn't mean it doesn't exist -- I didn't research for it is all. Do you have a citation or a case name?
As a practical matter, in nearly every substantial Free Exercise case I've ever been aware of, the government concedes the sincerity of belief issue at the outset; I'm only aware of the government disputing a plaintiff's sincerity of belief in prisoner rights cases where the claim is something along the lines of "My religion says I can only eat creamy peanut butter and you're serving me the crunchy kind."
I'm not aware of any instance of any Catholic hosptial (or university, or other institution) that has actually fired or even disciplined an employee for personally using contraception.
Were they to do so, this would not implicate the Constitution. It might implicate nondiscrimination laws as a form of sex discrimination, depending on the kind of position held by that former employee.
But again, I'm not aware of any such instance actually happening.
Nor I. I wouldn't be surprised if they refused coverage for it, though; that would be consistent with the doctrine that sexual congress should be allowed to bear fruit without artificial interference, consistent with God's benevolent plan for each of us and His injunction that we be fruitful and multiply.
I personally consider such reasoning to be a steaming load of hooey. But (not addressed at either of you, Friday or KenB) that does not mean I get a right to question the sincerity of a Catholic who feels differently.
Yes, and I've had some personal issues in real life.
I've a lot of catching up to do in order to make sure I don't cover already-resolved territory before jumping in late to the game on both points. But, on the other hand, I can assure you that Vegas rocks.
Also, my once-over leads me to another quick observation, which I included in a comment at the sub-blog I share with Will Truman:
Looks like they relied on San Francisco’s argument that Prop. 8 is unconstitutional because it took away the pre-existing right of SSM. So if The Marriage Cases hadn’t found that right in the pre-Prop. 8 California Constitution, then they’d have had to have used a more broad theory.
So it could be that the grounds for judicially voiding Prop. 8 would not apply to a state in which there had not been a judicial finding of SSM and then a subsequent political action to reverse the court. That means Iowa, Massachusetts, and Connecticut would likely be the only states other than California affected by the ruling.
I've not digested the whole thing yet. It's a 2-1 decision, with Judge Smith finding a rational relationship (and using a more deferential rational basis test) on the grounds of "responsible procreation" and "optimal childrearing" theories. But the majority opinion digs into those in some detail.
I'll be all over this tonight, after work. For now, I call out the slip opinion at pages 37-38, discussing the cultural significance of the word "marriage." An odd way to go about making that argument!
Much of my insistence on precision in language on this subject comes from the fact that the common use of the term "rights" does seem to embrace the idea of a government entity's power conjoined with a legitimate governmental interest. So if a police officer were to say something along the lines of "I have the right to arrest you and search your car if I have good reason to believe you're committing a crime," the qualification that there is probable cause makes my insistence on calling that a "right" as opposed to a "power" sort of legalistic.
Where I see a problem creeping in to policy from such a casualness of language is the idea that a right may be exercised without reprisal. This could come up in the case of the police officer conducting a search, thinking he's exercising his "right" as a police officer, who then believes that his own rights are somehow violated when the legitimacy of that search is challenged in a motion to suppress evidence, or in a civil rights lawsuit. It also comes up when people think that they have "rights" they can exercise against entities other than the government -- for instance, people who make a statement about a political issue, then find that private companies refuse to do business with them, and whine that their rights to free speech have been somehow violated. These kinds of complaints become glossed with concepts of entitlement and moral outrage, and soon enough people start demanding that police officers get more rights than private citizens, and private companies be required to conduct themselves as though they were governmental entities.
On “Contraception, Catholics, Compulsion, and Compelling Interests”
I think Obama can win this one politically. The reason is that so many Catholics actually use and want contraceptives -- and everyone knows it.
"
I'd be content with either. My familiarity here is with the tax code, not the PPACA.
"
Yeah, I think that's a viable argument. I'm not persuaded -- I see an implication in the free exercise of religion here, but then again, I thought Smith was wrongly decided and I guess I haven't dropped that torch yet.
My big problem with the Smith case has always been how to define a "law of general applicability." Any law is generally applicable. It's illegal for me to use peyote for recreation; it's illegal for a Native American to use it for religious communion. The case that would be really questionable after Smith is Church of Lukumi Babalu Aye v. City of Hialeah (1993) 508 U.S. 520. The Santeria church prevailed in that case because it had facts showing that the city specifically enacted a law against animal cruelty to shut it down. But under the reasoning in Smith, the city could say, "Hey, the Catholics can't do an animal sacrifice, either." Now, we'll likely never reach that point thanks to the RFRA -- but if Congress ever repealed the RFRA, I think the Santerians would be S.O.L. because Smith says that a "law of general applicability" like criminalizing cruelty to animals does not ever even implicate the Free Exercise clause; it's just not a concern at all.
That can't be right. If a law imposes a signifciant burden on a legitimate religious practice, we've got a Constitutional problem. If Catholics couldn't dispense communion wafers because a food inspector had not issued a restaurant license to the church, or the deacons hadn't been certified by the Alcoholic Beveral Control Board to card people before giving them a sip of the Blood of Christ, that would be a problem. Catholics are reasonably politically popular (these days, although that hasn't always been the case) so these scenarios seem laughably unlikely. But in the world of Constitutional law, we often deal with unlikely hypotheticals -- like the Obama Administration commanding a doctor at Georgetown Medical to dispense an abortifacient. So in a non-RFRA world, would you apply the rule of Smith to say that yes, the Health Board could theoretically shut down the ceremony of the Eucharist?
Alternatively, arguing on behalf of the government, could you shoehorn it in with the taxation power, as you suggest? "Do this, or you get taxed, $2,000 per employee." After all, once we're talking about tax dollars, we're beyond the realm of religious objections because it's the government's money that's being spent, not yours, and literally no one in the country has standing to object on religous grounds to how tax money is being spent, at least once it reaches the Executive Branch. This, I think, could be a very strong argument indeed. As I'll point out in a long-planned installment of the Great Cases that I'm now beginning to put together, taxation is in quite a lot of ways the most pervasive and unchecked power in the Constitution over individual behavior.
But again, if we hypothesize a tax targetted at certain kinds of people (say, employers who refuse to provide contraception coverage) and then make that tax punitively high (say, $75,000 per employee) then are we really in a world of tax policy incentivizing certain kinds of behavior, or have we now crossed some sort of threshold into, say, involuntary servitude, or takings? I don't know when that line gets crossed, but I believe that there must be such a line.
I am not aware of any action taken by this Administration to compel a religious entity to perform a service -- whether that be a same-sex wedding or an abortion or the dispensation of abortifacients -- against its will. I am aware of at least one state court that found a violation of state law in the denial of facilities rental when a church allowed one of its pieces of real property to be classified as a public accomodation so some lawyers made some money and a gay couple got to make a point and some politicians got a talking point. (The church later re-applied for a different kind of permit to re-classify the facility as private, and it can legally exclude gays now, just as Jesus intended, so the universe, or at least that portion of it that's in New Jersey, is in cosmic harmony once again.) But that was a state court, not a Federal official.
On “Is There Conservative Art?”
+1 to this.
"
I didn't say "never." I said "rarely."
For every George Carlin who (mostly) pulls it off, how many others try and get applause but no laughter?
"
Experience demonstrates that comedy can be funny, or preachy, but only very rarely both. I suspect art is the same way: it can be powerful and moving art, or it can convey a political message, but only rarely can it do both. So it's not the fault of conservative artists, or liberal artists, that they so rarely achieve both good art and a good message in the same work -- it's inherently a very tall order to achieve both.
Perhaps as the passage of time removes the political context of a work of art its technical mastery and artistic elements can become more prominent. We can look at paintings from the Renaissance and not see the politics of the day, since those politics matter to us almost not at all, even if contemporaries would have dismissed the painting as propaganda.
On “Leaguefest: A Preview”
And now I've actually gone so far as to offer my own post on the contraception coverage issue, one which I now consider to suffer from a theoretical flaw.
On “Contraception, Catholics, Compulsion, and Compelling Interests”
I find it interesting that no one has pointed out what half a day's reflection caused me to consider the biggest flaw in my own argument: why do I assume that the RCC has any rights under the Free Exercise Clause at all? After all, the Constitution recognizes and protects the rights of individual people, not of religious institutions or corporations. The RCC is not an individual person.
To get around this, we'd need to find a hospital administrator at a Catholic hospital who had a personal religious objection to having to actively participate in the funding of contraception. And at that point, we're at least a large step closer to the Bob's Catholic Car Wash scenario raised by Will Truman above.
"
I'm not aware of that ruling or courts upholding it. Doesn't mean it doesn't exist -- I didn't research for it is all. Do you have a citation or a case name?
"
As a practical matter, in nearly every substantial Free Exercise case I've ever been aware of, the government concedes the sincerity of belief issue at the outset; I'm only aware of the government disputing a plaintiff's sincerity of belief in prisoner rights cases where the claim is something along the lines of "My religion says I can only eat creamy peanut butter and you're serving me the crunchy kind."
"
But isn't it the case under PPACA that at some point, an employer the size of a hospital will be required to offer its employees health care?
This, by the way, strikes me as the best argument offered against the OP in these comments.
"
I'm not aware of any instance of any Catholic hosptial (or university, or other institution) that has actually fired or even disciplined an employee for personally using contraception.
Were they to do so, this would not implicate the Constitution. It might implicate nondiscrimination laws as a form of sex discrimination, depending on the kind of position held by that former employee.
But again, I'm not aware of any such instance actually happening.
"
Nor I. I wouldn't be surprised if they refused coverage for it, though; that would be consistent with the doctrine that sexual congress should be allowed to bear fruit without artificial interference, consistent with God's benevolent plan for each of us and His injunction that we be fruitful and multiply.
I personally consider such reasoning to be a steaming load of hooey. But (not addressed at either of you, Friday or KenB) that does not mean I get a right to question the sincerity of a Catholic who feels differently.
On “Hear Ye, Hear Ye! The Constitutional Convention of the LoOG is Now In Session!”
Or maybe a Sunday, or a weekend?
Oregon has all-mail balloting. Seems to work well for them.
On “Leaguefest: A Preview”
Yes, and I've had some personal issues in real life.
I've a lot of catching up to do in order to make sure I don't cover already-resolved territory before jumping in late to the game on both points. But, on the other hand, I can assure you that Vegas rocks.
On “Prop 8 Open Thread”
But the 14th Amendment prohibits restricting marriage rights to the States.
On “Of course, we’re not as bad as the Gulag…”
Might even save us some money, too -- but then, it would be a whole lot less rapey to get convicted of a crime. Can't have that.
On “Chicago-style politics means you don’t bring a knife to a gunfight”
You forgot "Christianists," and its other-aisle counterpart, "Islamists."
On “Prop 8 Open Thread”
Yes, that's right; I forgot NH. Thanks for the reminder.
"
Also, my once-over leads me to another quick observation, which I included in a comment at the sub-blog I share with Will Truman:
Looks like they relied on San Francisco’s argument that Prop. 8 is unconstitutional because it took away the pre-existing right of SSM. So if The Marriage Cases hadn’t found that right in the pre-Prop. 8 California Constitution, then they’d have had to have used a more broad theory.
So it could be that the grounds for judicially voiding Prop. 8 would not apply to a state in which there had not been a judicial finding of SSM and then a subsequent political action to reverse the court. That means Iowa, Massachusetts, and Connecticut would likely be the only states other than California affected by the ruling.
"
I've not digested the whole thing yet. It's a 2-1 decision, with Judge Smith finding a rational relationship (and using a more deferential rational basis test) on the grounds of "responsible procreation" and "optimal childrearing" theories. But the majority opinion digs into those in some detail.
I'll be all over this tonight, after work. For now, I call out the slip opinion at pages 37-38, discussing the cultural significance of the word "marriage." An odd way to go about making that argument!
On “Madonna: Always Relevant”
Bah! Get off my lawn!
On “Insert Your Own McRib Joke Here”
Ward, I've already written that post, at the sub-blog. My apologies if you missed it the first time around.
"
Much of my insistence on precision in language on this subject comes from the fact that the common use of the term "rights" does seem to embrace the idea of a government entity's power conjoined with a legitimate governmental interest. So if a police officer were to say something along the lines of "I have the right to arrest you and search your car if I have good reason to believe you're committing a crime," the qualification that there is probable cause makes my insistence on calling that a "right" as opposed to a "power" sort of legalistic.
Where I see a problem creeping in to policy from such a casualness of language is the idea that a right may be exercised without reprisal. This could come up in the case of the police officer conducting a search, thinking he's exercising his "right" as a police officer, who then believes that his own rights are somehow violated when the legitimacy of that search is challenged in a motion to suppress evidence, or in a civil rights lawsuit. It also comes up when people think that they have "rights" they can exercise against entities other than the government -- for instance, people who make a statement about a political issue, then find that private companies refuse to do business with them, and whine that their rights to free speech have been somehow violated. These kinds of complaints become glossed with concepts of entitlement and moral outrage, and soon enough people start demanding that police officers get more rights than private citizens, and private companies be required to conduct themselves as though they were governmental entities.
On “No Points for Thinking of Richard Branson”
We could set up a LOOG fantasy football league on Yahoo or ESPN or some other sports site.