Professor Thai's questions

Thanks to Professor Joseph Thai for his two questions.  For what it's worth . . .

He asks, with respect to the Court's Religion Clauses jurisprudence:

(1) [W]hat, if anything, is “Catholic” about the jurisprudence of these justices [i.e., Justices Scalia and Kennedy]; and relatedly, (2) is it possible to identify what a “Catholic” position should be to on, say, the conflicting Sherbert and Smith approaches to FE, or the various EC principles out there.

In my view, which is not shared, I suspect, by most of my fellow MOJ-ers, the bottom line in the Smith case is right.  That is, the Constitution, best understood, does not require governments to exempt religious believers or conduct from religion-neutral, generally applicable laws.  (Of course, as Justice Scalia notes in Smith, it is entirely appropriate -- and, it is entirely "Catholic" -- for the politically accountable branches to grant generously religious exemptions.)  In my view, the Church's religious-freedom teachings are not inconsistent with Smith, in that these teachings make it clear (to me, anyway) that religious exemptions need not be granted when they would be damaging to the common good.  And, there is no "Catholic" reason for preferring judges' determinations about the appropriateness of exemptions in particular situations to those of legislators.

As for the Establishment Clause, it seems to me that the Catholic justices' views are squarely in line with the Catholic understanding of religious freedom under law, and an appropriate separation of church and state.  I'm not sure what Professor Thai is getting at with respect to his invocation of "coercion"; I would have to disagree with any suggestion that any justice -- Catholic or not, liberal or conservative -- believes that the EC permits actual "coercion" in matters of religious conscience.