More on the Catholic Charities case

On Tuesday, I had the pleasure of speaking with the St. Thomas More Society at the University of Chicago's law school. Thanks very much to those students who attended, and also to Professor Philip Hamburger (whose recent study, Separation of Church and State, is essential to understanding the Catholic Charities case, and religious freedom in America more generally).

In my talk, I am afraid that I gave relatively short shrift to the many interesting doctrinal questions presented in the California Supreme Court's decision: How, exactly does the Court's Smith decision apply to laws that burden the religious exercise of groups (churches, associations, institutions, etc.), as opposed to laws that assertedly burden the free exercise or conscience of particular, discrete individuals? Should California's free-exercise clause be read to impose a more demanding standard on state action than that imposed by Smith? If the answer to this question is "yes" -- and the court was willing to assume that it is, for the same of argument -- then what should the "strict scrutiny" review required by such a standard look like? (In my view, the California court's purported application of "strict scrutiny" is quite un-strict). If -- as I think is the case -- the California court failed to appreciate the extent to which the law challenged in the Catholic Charities case was targeted specifically at Catholic institutions (and is therefore not "neutral", as Smith purports to require), is this failure a ground for criticizing the California court, or for criticizing the Supreme Court's decision in Lukumi, which appears to disapprove "discriminatory", though facially neutral, laws? And so on . . .

As several students pointed out (and as others have noted in correspondence with me), the Catholic Charities case puts me in a bind: One the one hand, I have been convinced that Smith is probably right (i.e., that the First Amendment is best understood as not requiring exemptions for religious believers from generally applicable laws). On the other, I regard both the decision by the California Court, and the California legislature's refusal to accommodate the objections and obligations of Catholic Charities, as deeply injurious to authentic religious freedom. Hmmmm.

Rick