Quick Clarification in re Rick's Response to Steve and Bob, with a Promise to Return to Robby and Marty

I've just returned from Albany - where, I am happy to report, my co-author Michael Campbell and I received favorable responses from the New York Bankers Association and and others to a mortgage bridge loan assistance statute that we've put together.  (For those who might be interested, here it is: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1987093.  And there's even a white paper in support: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1987159.)  I've accordingly fallen a bit behind on matters HHS this past 24 hours or so, sad to say.  

I've had a quick preliminary look at Robby's and Sherif's Morals and Mandates, however, and as one might have anticipated, I find it a tour de force - a very model of careful analysis of such data as we presently have.  (And I do not say this simply because I teach a course titled Markets, Morals, and Methods!)  I'll accordingly try to engage more fully with this important intervention in the days ahead, as well as with Marty's thoughtful response and Robby's careful step-by-step rejoinder.  (And Sherif, I wish I'd known about you sooner, as I was at alma mater YLS last week to speak on global currency arrangements, of all non-HHS-related things.)  

I would also like quickly while at it here to distance myself from a position that I fear Rick might inadvertantly be taken for attributing to me.  I do not at all intend to suggest, per the first sentence of Ricks' recent post (http://mirrorofjustice.blogs.com/mirrorofjustice/2012/02/a-quick-response-to-steve-and-bob-re-scalia-accommodation-insensitivity-and-the-mandate.html), 'that we should not be too hard on the Obama administration for its insensitivity to religious freedom ... because Justice Scalia, in Smith, was insensitive to it, too.'  (I doubt that Steve meant that either, but I leave the response on his behalf to his own far more capable hands.) 

To the contrary of what Rick might mistakenly be taken to assert or imply, I believe that we should be quite hard on the Obama (and any other) administration for any insensitivity (or indeed contempt or indifference) that it might show to free exercise.  That certainly includes the first rendition of the HHS mandate, and possibly includes the latest as well (a question, again, that I've abstained for the time being from addressing, pending further information and analysis).  I think, moreover, that I have expressed a warranted degree of hardness in all posts on this matter since the present imbroglio - a fracas, alas, of the administration's own oafish making - commenced.  And that is so notwithstanding - indeed it is partly because of - my belief that the President sincerely wishes to do the right - and not merely the expedient - thing. 

I hope I have also made clear that I am not among those who think President Obama 'awesome.'  Nor do I believe that most 'liberal,' 'progressive,' or sometimes 'leftward'- leaning Catholics who balked at Mandate 1.0 regard him that way either.  Most of us, I would conjecture, even if we tend less often to find unalloyedly cynical motives behind the President's decisions than some of our friends on the 'right' seem to us sometimes to do, have found him rather disappointing on many scores thus far - too often insufficiently forceful both on behalf of social and economic justice and on behalf of free exercise. (His recent Osawatomie and State of the Union addresses, as well as yesterday's 2013 budget announcement, signal to me very welcome progress on the socio-economic justice - and, finally, sound macroeconomic policy - front, which I hope might be replicated on the free exercise front in what ever final shapes the HHS mandate and other actions might take.  But I shall not on that account be ceasing to watch.)  

What I did wish to suggest in my post to which Rick refers, and what I hope I did more than merely suggest, is that insufficient solicitude for free exercise is indeed bi- or non-partisan.  (We've not here forgotten the infelicitously christened 'ground zero mosque' affair, I presume - in which Robby, I think, was heroic.)  How ever one distinguishes Smith from Mandate 1.0 - and how could one not? - the fact is that Smith in its holding and tone troubled many on both sides of the Congressional aisle, and Justice Scalia's dismissive remarks (to an audience to which I referred earlier) about RFRA, passed in response to Smith, likely did little to vindicate him in the eyes of defenders of free exercise.  Nor, I suspect, did his little performance of 'Babaloo.'  And finally for present purposes, nor did Chief Justice Roberts's offhand characterization of sacramental peyote use in distinguishing Smith from Hosanna-Tabor, I think, do him credit.  These missteps and misstatements are perhaps no HHS mandates, but they are surprisingly callous and, I believe, altogether regrettable. 

My 'message,' then, I suppose is a platitude - or at any rate ought to be one:  The forms of worship, both in liturgical contexts and in that more general conduct of life known as 'ethics,' which have developed among our sisters and brothers of most if not all faith traditions worldwide over the course of millennia, are just wondrous, precious, beautiful, awe-striking things.  They spring of love and are immediately recognized by love and in love as ... love.  I think it accordingly a deep, dreadful shame - indeed a 'sacrilege' - any time anyone acts or speaks merely dismissively or otherwise cavalierly in respect of any of them, be it by unjustly or unlovingling doing by others in their name, or by contemptuously or recklessly or negligently disregarding them in enacting laws or promulgating rules, or even by merely scoffing at or mocking them.  And I fear that we find this, alas, all around - and on both sides of all aisles.  

(And I am myself far from innocent.)

More soon.  And thanks to all who are writing on this right now.