Tuesday, February 14, 2012
A quick response to Marty Lederman
A few thoughts in response to Marty's post, from a few days ago, and to those others who have pressed, in defense of the mandate, the argument that the mandate is basically the same thing as a school-voucher program (in terms of burdening objectors' consciences).
I agree with Marty that there is no moral or religious-liberty right to object to paying (that is, to opt out of) taxes on the ground that the government, whose operations are in part funded by those taxes, does things to which one objects on religious. (So, Flast v. Cohen is wrong.) I think Marty and I also agree, though, that a situation in which the government says to A, “take some of your money and pay for X activity,” to which A objects on religious grounds? In my view, the original mandate (which, despite Friday’s announcement, is still the law-on-the-books) is more like the latter situation than the former (while the voucher question is more like the former). The question is whether the announced (but not yet enacted) change to the mandate moves the situation closer to the former.
I also agree that it should take something more than the assertion “X policy substantially burdens my free exercise of religion” to establish that X actually does, for RFRA purposes, burden the speaker’s free exercise of religion. But, what is that “something more”? We agree, I think, that RFRA-interpreting courts can inquire into sincerity, but can / should they inquire into the theological merits of the assertion? So, if Catholic Institution Inc. asserts that “it believes” complying with the mandate would substantially burden its free exercise of religion – in part because of its understanding of cooperation-with-evil analysis and categories – should the fact that there are prominent Catholic theologians and ethicists who say “no, actually, cooperation with the mandate would not be culpable” matter?
https://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/a-quick-response-to-marty-lederman.html
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Rick I had a case like this a few years back. The Coast Guard required vaccines, but had a policy allowing for religious objections. A Catholic objected to a vaccine derived from aborted baby cells, and there was no urgent need for him to get the vaccine. The Coast Guard denied his objection on the grounds that it viewed his Catholic theology as incorrect, that Catholics really aren't opposed to such vaccines. As a matter of fact, the Church leaves this and most moral calculations to individual consciences (freedom!), and provides good reasons to take this Catholic's view. But the Coast Guard settled in our favor because ultimately if it offers religious objections it has no business choosing between different Catholic camps of moral theology. Likewise here: RFRA does not allow the federal government to declare that Prof. Lederman is right and Prof. George is wrong, and that those siding with the latter get fined. Wherever the substantial burden requirement is, it is far lower than that. Unless Prof. Lederman wants to declare Prof. George irrational.