More conversation with Professor Thai

Thanks much to Professor Thai for his thoughts in response to my post about the Smith case, the Religion Clauses, and Catholic teaching. 

With respect to Smith, I should have been more careful than I was, and made clear that when I say Smith was "right," I mean only that, in my view, the case's holding captures what I think the Free Exercise Clause and the Fourteenth Amendment actually mean and require.  Like Professor Thai I suspect, I worry that, by leaving the exemptions question (pretty much) to the political process, Smith leaves open the possibility that such exemptions will not be granted, even when they should.  (That said, the political process has responded in many ways, with state-law RFRAs, the federal RFRA, the RLUIPA, and so on.)

Now, in Dignitatis humanae (link), and in the Catholic social tradition generally, it is clear that religious freedom is a fundamental human right.  In DH, we read, for example (par. 2):

This Vatican Council declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.

And (par. 2):

Therefore the right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature. In consequence, the right to this immunity continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it and the exercise of this right is not to be impeded, provided that just public order be observed.

And (par. 3):

Injury therefore is done to the human person and to the very order established by God for human life, if the free exercise of religion is denied in society, provided just public order is observed.

And, finally (par. 7):

The right to religious freedom is exercised in human society: hence its exercise is subject to certain regulatory norms. In the use of all freedoms the moral principle of personal and social responsibility is to be observed. In the exercise of their rights, individual men and social groups are bound by the moral law to have respect both for the rights of others and for their own duties toward others and for the common welfare of all. Men are to deal with their fellows in justice and civility.

Furthermore, society has the right to defend itself against possible abuses committed on the pretext of freedom of religion. It is the special duty of government to provide this protection. However, government is not to act in an arbitrary fashion or in an unfair spirit of partisanship. Its action is to be controlled by juridical norms which are in conformity with the objective moral order. These norms arise out of the need for the effective safeguard of the rights of all citizens and for the peaceful settlement of conflicts of rights, also out of the need for an adequate care of genuine public peace, which comes about when men live together in good order and in true justice, and finally out of the need for a proper guardianship of public morality.

Smith is, it seems to me, consistent with the Church's teaching that religious freedom is fundamental and that the exercise of religion may and should be subject to certain "regulatory norms," consistent with "just public order."  The rule of Smith is consistent with the view that religiously motivated conduct may and should be exempt from generally applicable laws (so long as it would not harm the common good to exempt it).  At the same time, the Court insisted, the Constitution does not authorize judges to second-guess the decisions of the politically accountable branches with respect to whether or not a particular exemption should be granted.  I don't think the Church presumes to teach that the balancing inherent in, say, the passages quoted above must be conducted by a court, rather than a legislative body.  

On the coercion point, Professor Thai should not be "embarrassed," because I'm sure that I misunderstood him!

With respect to Professor Thai's next set of observations, about different Catholic justices' views on accommodation, and his claim that some current Catholic justices "tend to favor majority or mainstream religions," while Justice Brennan "tended to be more constitutionally protective of minority religions":  I would probably disagree with the view that the current Catholic justices "favor" majority religions.  That said, it is true that an approach like Justice Brennan's is likely, in practice, to require religion-friendly exemptions for members of minority religions, primarily because, in his view, they can be easily accommodated without doing harm to what he regards as the state interests at stake.

Of course, my friend Tom Berg, church-state guru that he is, is going to set me straight on all of this.