I wonder if the legal impact of these two religion-related cases will prove to be less significant than the political impact. For example, the striking exaggerations and even misrepresentations from many commentators and activists about the reasoning, holding, and implications of the Hobby Lobby case have already prompted calls to repeal or gut RFRA. These calls, as I see it, are striking in part because they depart so dramatically from the bipartisan consensus of just a few decades ago about the value of accommodating religious liberty and also because they fail to appreciate that the vast majority of those who benefit from RFRA and RFRA-type laws are not "corporations" but are members of vulnerable and unpopular religious minorities.
I continue to think that the Town of Greece case is best seen as a "preserve the status quo" case. The Second Circuit had proposed a departure from the Court's longstanding approach to legislative prayer, set out in the Marsh decision. The justices overwhelmingly -- even the dissenters -- insisted that Marsh remains the standard, even as they disagreed about its application. The denial of cert in the Seventh Circuit graduation-in-a-church case suggests that the Court was not looking to remake its religious-symbols doctrines or explicitly jettison the battered "endorsement test."
The Hobby Lobby ruling, assuming its reasoning is taken seriously in the lower courts, confirms what was said several years ago (unanimously) in O Centro: RFRA is to be taken seriously. That is, Congress meant what it said when it declared it to be the national policy that substantial burdens on religious belief and practice need to be well justified, under a demanding standard. If the federal government can accommodate religion, the Act says, then it should. The fact that accommodation involves some costs and inconvenience, and some departures from uniformity, is not an excuse for not accommodating. This is an important principle, and Hobby Lobby's primary significance is that it affirms it. But, again . . . the Court had already said this. What Hobby Lobby does that could be "new" is that it does so in a more charged, "culture wars" context ("War on Women" rhetoric means anti-Citizens United passions) and so prompts (as O Centro did not) calls to embrace the "same rules for everyone no matter what" standard that was, to so many on the left, offensive when proposed by Justice Scalia in Smith.
The "parade of horribles" being suggested by some commentators, and by the dissent, is very unlikely to come to pass. We will not see courts allowing for-profit businesses to ignore nondiscrimination laws, or health-and-safety rules, or general tax obligations. Hobby Lobby is an unusual case, in part because Hobby Lobby is an unusual company and in part because the contraception mandate is an unusual rule (one that, it's worth remembering, was not imposed by Congress itself). Those who claim that this ruling means that big companies will start discriminating on the basis of race or trying to avoid paying minimum wage know better. RFRA has been on the books for more than 20 years. If there was a lot of interest in bringing these kinds of cases, we would have seen some.
Amidst instant opinion analyses and surrounded by Supreme Court surveys, it might be helpful to step back even further and consider more enduring questions. To that end, I've collected below links to the John Courtney Murray Chair Lectures delivered by MOJ's Fr. Robert Araujo, S.J. at Loyola University Chicago School of Law.
As an invitation to enter into Fr. Araujo's Murray-grounded explorations of some of the perennial problems of law, morality, and their grounding in reason, consider Fr. Araujo's answer to the question of how Murray addressed the challenging era in which he lived. The opening paragraphs of Fr. Araujo's inaugural lecture:
Charles Dickens began his Tale of Two Cities with the memorable line, “It was the best of times; it was the worst of times.” Dickens’ great saga takes us back and forth between two very different worlds, one in England and the other in France, during the bloody turmoil of the French Revolution. The juxtaposition of such diverse places existing in parallel fashion suggests something about the times in which Fr. John Courtney Murray lived—in a world of depression, of two global wars, and of a new kind of tension called the Cold War. And how did he address the challenging era in which he lived? It may have been Murray’s training as a theologian that made him understand the best and worst of his times; it may have been the fact that he was a lawyer’s son who understood the importance of the rule of law in governing a society of ordered liberty; it may have been his priesthood which helped him put all of the tumult of his life and times into context. But he was largely a man of hope who was fortified jointly by reason and faith. Perhaps he took to heart Saint Augustine and realized that he was a citizen of—a participant in—two cities: the City of God and the City of Man.
In essence, the dual citizenship concept suggests that Murray was both a contributing member to the public square and an ardent American citizen. But he was also a faithful Catholic and obedient son of the Church. For some individuals, it is hard to imagine that such a person could exist, yet this is how he served the common good and the public interest during his relatively brief life. But because of his formation as an American and a Catholic, Murray demonstrated that American Catholics can simultaneously be faithful members of the Church and contributing members of the American republican democracy. Indeed, their greatest contribution to our democracy may be in recalling America to the understanding of the human person and human institutions that animated the founding of the country—an understanding whose greatest expositors include Fr. Murray, John Paul II, and Benedict XVI.
Here's the headline of an article in the Huffington Post:
The Uncomfortable Question: Should We Have Six Catholic Justices on the Supreme Court ?
The headline brings back memories of Paul Blanshard's influential anti-Catholic book: American Freedom and Catholic Power. To see how really vile the article is, though, you must read the whole thing. Then think of what it tells you about the Huffington Post as its publisher and the larger intellectual/political culture of which the HP is an expression.
Yep. You guessed it. It was little old me. Or so says paranoid left-wing commentator Frank Schaeffer in an article at Patheos spinning out the most bizarre conspiracy theory to appear since William F. Buckley excommunicated the Birchers and Lyndon LaRouche shuttled off to, well, wherever Lyndon LaRouche shuttled off to. How did I (allegedly) do it? Easy. First I cleverly brought the U.S. Catholic bishops, the Mormon leadership, and the major Evangelical leaders under my influence. Then I worked through my "followers," Antonin Scalia and Samuel Alito.
You think I'm kidding? Here's Schaeffer:
"[Robert] George is the de facto father of the twinned war against gays and war against women. Scalia is his follower and close friend. And George has the support of the U.S. Roman Catholic bishops, the Mormon leadership and the most conservative of the evangelical leaders. Charles Colson was George’s close confident [sic]. Together they hatched the plan that in the end (and after Colson died) became the Hobby Lobby case."
In my contribution to the SCOTUSBlog symposium on Hobby Lobby, I address the Court's "substantial burden" reasoning and pick out a few footnotes of interest. Some more general thoughts also, including this:
For analytic purposes, it is convenient to break down the Hobby Lobby decision on RFRA into three parts: (1) Who can bring a claim under RFRA? (2) How does the “substantial burden” inquiry proceed? (3) How strict is strict scrutiny under RFRA? In each of these three areas, Justice Alito’s opinion for the Court sets forth an answer and analysis that should ensure greater solicitude for religious liberty in the administrative state. Federal government lawyers advising agencies on the regulatory implementation of statutory schemes that hold the potential to impinge on religious freedom should take three clear lessons from Hobby Lobby: (1) The Supreme Court will enforce RFRA’s comprehensive coverage as broadly as its capacious text reaches; (2) the “substantial burden” trigger for RFRA’s protections should be understood from the point of view of the sincere religious believer asserting a burden, with no “attenuation” escape hatch allowing legal recharacterization of these beliefs by government lawyers or federal courts; and (3) strict scrutiny under RFRA really is strict.
I have a piece at America discussing the decision and its implications. (Can't begin to catalog all the different reactions around the web that are worth reading.)
Among the upcoming challenges will be efforts to repeal, amend, or otherwise limit federal RFRA or its state counterparts. Stay tuned for all those developments.
Here is a link to a conversation I had, with Prof. Elizabeth Sepper (and callers), on the NPR program "On Point." And, here is a podcast about the case that I did yesterday with Michael Moreland, Micah Schwartzman, and Eric Jaffe.
Here are two items discussing the case--a decision that is, consistent with Patrick Brennan's and Tom Berg's observations, quite narrow in scope: first, a podcast that Mark Movsesian and I recorded explaining the holding and offering some thoughts about future issues; and second, a comment on the Liberty Fund site.
I look forward to reading other contributors' reflections.
Skepticism has been expresses in various places about the veracity of what was reported to me about a Chase Bank survey in which employees were asked to go on the record as to whether they are "an ally of the LGBT community." "It would be bad if it really happened," some are saying, "but I don't believe it did." I have, however, received confirmation that it did in fact happen from another employee. He identified himself to me so that I could confirm his identity, but requested, for obvious reasons, that I not disclose his name. Here is the text of his note
I just wanted to confirm the Chase employee survey. It did have the last two options about being an LBGT ally. I have worked for Chase for [here he gave the number] years and was blown away by this question. I have no idea what they were thinking when they asked that. If this is posted,please spare my identity.
I would be grateful if other Chase employees could provide confirmation. It would be especially good if someone has a screen shot of the survey questions.
The philosopher Richard Schuldenfrei once told me about what it was like growing up as a "red diaper baby" in a devoutly Communist family: "We were taught two things: The Rosenbergs were not spies, and it's a good thing they were." I wonder if we're heading for something similar in this case: "The survey questions were not asked, and it's a good thing they were."
