A response to Steve and Bob re: Scalia, accommodation, insensitivity, and the mandate

Bob and Steve both suggest, in recent posts, that we should not be too hard on the Obama administration for its insensitivity to religious freedom (an insensitivity that, in my view, is established by the at-least-clear-and-convincing evidence of the Hosanna-Tabor brief and the HHS mandate, which is -- notwithstanding Friday's announcement -- still the law), because Justice Scalia, in Smith, was insensitive to it, too.

Obviously, like any human being, Justice Scalia makes mistakes.  However, as Bob and Steve know, the comparison between (1) an interpretation according to which judicially-created accommodations from generally applicable and neutral laws are not required by the First Amendment, but legislative accommodations are both permissible and welcome (i.e., Justice Scalia's view in Smith), and (2) a decision by a political actor to refuse an accommodation (or to grant an inadequate one) that the Constitution clearly would allow, even if it does not require, misses a lot that matters.  Smith, to repeat, is not hostile to exemptions, but to judicial second-guessing of the balance struck by the political process.  The case welcomes (as has Justice Scalia in other cases) accommodations; the President, and his supporters, seem to regard them as presumptively unjustified, and warranted only to the extent the need to tamp down political firestorms requires.

So, contrary to Steve's suggestion, there is no "irony" in conservatives' expression of regret over the mandate (and over whatever modifications to it Friday's announcement might bring).  More striking, to me, than this non-irony is the apparent fact that those of Obama's Catholic supporters who (to their credit) were willing to "call out" the Administration for the arrogance displayed in Sec. Sebelius's handling of the mandate seem to have been satisfied by an announcement that (i) does not repudiate the administration's earlier insistence that the original (and still operative) form of the mandate reflected an appropriate respect for religious freedom; (ii) still will require religious employers to bear the cost (though perhaps slightly less directly) of employees' abortion-causing drugs; (iii) does nothing to revise the very narrow religious-employer exemption, which was the target of these supporters' (strong, in some cases) criticism; and (iv) seems so obviously calculated simply to shore up the base, and quiet down the critics, for the few months that remain between now and the election.  Indeed, these supporters seem -- to my great regret -- to have returned enthusiastically to the tired and sad script according to which those Catholics who persist in thinking that President Obama is not, well, awesome are nothing more than bad-faith hacks, partisans, and moral unsophisticates.  Too bad.