Mirror of Justice

A blog dedicated to the development of Catholic legal theory.
Affiliated with the Program on Church, State & Society at Notre Dame Law School.

Tuesday, October 10, 2006

Linker & Douthat, pt. 2

By Rick Garnett

Continuing the online debate over at the New Republic, and responding to Ross Douthat's opening post (about which I blogged here), Damon Linker writes:

. . .  Is my opposition to theoconservative ideology not better understood as opposition to orthodox Catholicism? Can you [i.e., Douthat] and Neuhaus, as Catholics, be good citizens of a liberal polity like the United States?

My answer is simple: Of course you can--on one condition. Like every other citizen, you must be willing to accept what I call "the liberal bargain." In my book, I describe this bargain as the act of believers giving up their "ambition to political rule in the name of their faith" in exchange for the freedom to worship God however they wish, without state interference. What does this mean, in practical terms? It means that your belief in what the Roman Catholic Church believes and teaches is irrelevant, politically speaking. It simply shouldn't matter whether or not you think that justice has a divine underpinning, anymore than it should matter whether you prefer Jane Austen to Dostoevsky. In a word, liberal politics presumes that it's possible and desirable for political life to be decoupled from theological questions and disputes.

It seems to me that "liberal politics" presumes no such thing.  Or, if it does, it is kidding itself.  "Political life" is simply too big, and too many "questions" are, in the end, "theological," for the two to be entirely "decoupled."  To be clear:  Of course "church" and "state" should be separate, and state coercion should not be employed in order to coerce religious exercise or observance.  But, in Linker's view, it appears the "liberal bargain" is far more comprehensive, and rules out, say, voting for a minimum-wage increase because one thinks such a vote is demanded by a meaningful commitment to the preferential option for the poor.

But there is a complication: What if a faith forbids its adherents to accept the liberal bargain?  What if it explicitly refuses to permit believers to decouple their political and religious convictions? What if it demands unity--unity in the name of one set of non-negotiable theological truths? Such a religion may be incompatible with liberalism. Whether Islam is inherently illiberal in precisely this way is one of the most pressing questions confronting the Western world today.

And Catholicism? Since Vatican II--and especially since the start of Pope John Paul II's pontificate--the Catholic Church has staked out a novel position on these matters. Like most anti-liberal faiths, it has demanded a unity between politics and religion.

Huh?  This is, well, wrong.  See, e.g., Deus caritas est par. 28(a):  "Fundamental to Christianity is the distinction between what belongs to Caesar and what belongs to God (cf. Mt 22:21), in other words, the distinction between Church and State, or, as the Second Vatican Council puts it, the autonomy of the temporal sphere.[19] The State may not impose religion, yet it must guarantee religious freedom and harmony between the followers of different religions. For her part, the Church, as the social expression of Christian faith, has a proper independence and is structured on the basis of her faith as a community which the State must recognize. The two spheres are distinct, yet always interrelated.:

But it has also maintained that Catholic moral teaching is perfectly compatible with liberalism--indeed, that it is the only solid and sure foundation for liberalism. By contrast, liberalism without Catholicism is, in John Paul's arresting phrase, "thinly disguised totalitarianism."

Catholicism does not so much reject what liberalism affirms as it denies the validity of the distinctions liberalism typically assumes--distinctions between private and public, secular and sacred, reason and revelation. In place of these distinctions, the Church proposes a higher synthesis, all the while claiming that such a synthesis produces a purified liberal politics. This is pretty much what the theocons propose for the United States.

I tend to think that this way of thinking about political life obscures far more than it clarifies. It thus also leads certain Catholics to misunderstand the character of modern politics--in particular, the possibilities it opens up and those it forecloses. Does that make me anti-Catholic? I look forward to hearing your answer to this question.

Me, too.

New article on "discrimination" by religious organizations

By Rick Garnett

On the topic of the ministerial exception and "discrimination" by religious organizations, here is a new article by a former student of mine, Tom Messner, "Can Parachurch Organizations Hire and Fire on the Basis of Religion Without Violating Title VII?"

Monday, October 9, 2006

TNR debate: "American Catholicism"

By Rick Garnett

The New Republic's web site is hosting an online debate between Damon Linker, of "Theocons" fame, and Ross Douthat, of Atlantic Monthly.  (Douthat reviewed the current raft of anti-"theocon" books recently, in First Things.)  Here is a blurb from Douthat's opening entry:

"The guarantee of religious liberty" in the Constitution, you write, "institutionalizes the perpetual political impotence of religion." Maybe in Lilliput or or Never-Never Land, but not in real-life America, where an endless variety of religiously inspired political movements have jostled and competed for influence under the umbrella of government neutrality. Hence abolitionism and the Social Gospel; hence the religious populism of William Jennings Bryan and the eschatological politics of Martin Luther King Jr.; hence ... well, just pick up a history book. A lot happened between the Federalist Papers and the publication of The Naked Public Square--some of it good, some of it bad, and nearly all of it affected by precisely the kind of religion-infused politics that you see as a mortal threat to the American experiment.

Because you don't discuss this history in any detail, it's somewhat difficult to tell whether you think that previous irruptions of faith into American politics were just as dangerous to the health of our secular republic as the "theocons" and their sinister agenda--or whether you think there's something particularly un-American about Neuhaus and company. At times, you seem to be arguing that, any time faith influences government or vice versa, the results are "pernicious" for politics and religion alike. (You even chide the distinctly unzealous Christianity of midcentury mainline Protestantism for having "endorsed New Deal liberalism" and thereby succumbed to Christianity's "incarnational temptation.") But, for the most part, I suspect that you believe that the attempt to link the American Founding to the Catholic natural-law tradition--which is at the heart of the "theoconservative project," insofar as there is one--marks a greater departure from America's supposed secular ideal than did the God-soaked politics of, say, Bryan or King. (This is how your friend Russell Arben Fox interprets your argument, at least, in an exegesis of your thesis that's somewhat more interesting than the thesis itself.)

If this is what you mean, I wish you had been gutsy enough to take your argument to its logical conclusion and to say outright what you repeatedly imply--namely that orthodox Catholicism is essentially incompatible with the American liberal order, and that Neuhaus (like John Courtney Murray before him) is wrong to tell his co-believers that there's no great tension between Rome and the United States. You spend a great deal of time talking about the "authoritarian" political inclinations of Neuhaus and company and how they threaten liberalism, but your evidence is nearly always that they believe in accepting the Catholic magisterium's religious authority on matters of faith and morals--with the implication being that, if you let the magisterium tell you what to think about birth control or the Virgin Birth, you aren't fit for the responsibilities of democratic self-governance.

This argument --that American Catholics need to choose between the Pope and the republic--has a long pedigree in our political life, and it's far from an absurd interpretation of the relationship, or lack thereof, between liberalism and Catholicism: It is held, for instance, by Neuhaus's critics on the Catholic right, who accuse him of choosing the republic over Rome. So I put it to you--is this your opinion on the matter? Is the dissenting, the-Pope-can't-tell-me-what-to-think Catholicism of Garry Wills the only form of Catholicism that's acceptable in the American context? You accuse Neuhaus of hinting that Jews and atheists can't be good citizens; do you think that Neuhaus, given what he believes, can be a good citizen himself?

Or put another way: As someone who believes in what the Roman Catholic Church believes and teaches--and as someone who thinks that our laws should be just and that the ultimate source of this justice is God--can I be a good American? Is there a place for me at the table of your idealized secular state?

Tune in tomorrow, for Linker's response . . .

Stare decisis and PBA

By Rick Garnett

Here is an opinion piece, "What Would Lincoln Do?," from the current issue of The Weekly Standard, which is adapted from the amicus curiae brief that Mike Paulsen (Minnesota) and I filed in the upcoming partial-birth-abortion cases.  Here is a bit:

For as long as Americans have known about the several thousand partial-birth abortions performed each year, they have--by comfortable and consistent margins--agreed with the late senator Daniel Patrick Moy nihan that "[the procedure] is infanticide, and one would be too many." Nevertheless, the Supreme Court declared six years ago in Stenberg v. Carhart that Nebraska's effort to ban this particular late-term abortion method violated the right to abortion that was manufactured in the 1973 Roe v. Wade case.

Congress responded with a ban of its own, one that was designed to satisfy the standards set out in Carhart. But this effort, the federal Partial-Birth Abortion Ban Act of 2003, has now been rejected by lower federal courts. The question before the Court now, in Gonzales v. Carhart and Gonzales v. Planned Parenthood, is whether the justices will permit us to regulate this procedure, which revolts Red and Blue America alike. . . .

In fact, the justices could probably uphold the federal ban without reversing the Stenberg decision. But they shouldn't. The Court's time and constitutional powers would be better spent, and the rule of law better served, if Stenberg were simply abandoned.

What about stare decisis, though? Don't the editors at the Times have a point when they urge deference to precedent? Of course they do. It is eminently sensible for courts to stick with settled decisions, absent special and strong justification. But the doctrine of stare decisis, properly understood, is not an inexorable command of blind, unquestioning adherence to the most recently decided case. It is not, as Justice Frankfurter once put it, the "imprisonment of reason." It is, instead, a principle of judicial policy, a flexible, practical idea that leaves plenty of room for discretion as to how it should be applied in any given set of circumstances. . . .

Contrary to the ruling in Stenberg, nothing in our constitutional text, history, tradition, or structure supports, let alone compels, the conclusion that the American people may not affirm our commitment to decency and human dignity by rejecting partial-birth abortion. Nor does the judicial policy of stare decisis shackle the Court to such a horribly wrong precedent--be it Stenberg or Dred Scott.

The NYT on religion and accommodation

By Rick Garnett

The New York Times is running a four-part series "examin[ing] how American religious organizations benefit from an increasingly accommodating government."  Sunday's installment, "As Exemptions Grow, Religion Outweighs Regulation," is here; today's is called, "Where Faith Abides, Employees Have Few Rights."  A quick, general observation:  It strikes me that, in these first two pieces, there is inadequate attention paid to the distinction between accommodations and exemptions that are thought to be, or that could plausibly be said to be, required by the relevant constitutional text, structure, and history, on the one hand, and -- on the other -- those exemptions that are the permissible, but not required, result of legislative decisions to accommodate.

Today's story talks in some detail about the "ministerial exception":

The most sweeping of these judicial protections, and the one that confronted the novice nun in Toledo, is called the ministerial exception. Judges have been applying this exception, sometimes called the church autonomy doctrine, to religious employment disputes for more than 100 years.

As a rule, state and federal judges will handle any lawsuit that is filed in the right place in an appropriate, timely manner. But judges will almost never agree to hear a controversy that would require them to delve into the doctrines, governance, discipline or hiring preferences of any religious faith. Citing the protections of the First Amendment, they have ruled with great consistency that congregations cannot fully express their faith and exercise their religious freedom unless they are free to select their own spiritual leaders without any interference from government agencies or second-guessing by the courts.

To do otherwise would be an intolerable government intrusion into employment relationships that courts have called “the lifeblood” of religious life and the bedrock of religious liberty, explained Edward R. McNicholas, co-chairman of the national religious institutions practice in the Washington, D.C., office of Sidley Austin, a law firm with some of the country’s largest religious organizations among its clients.

The piece then goes on to profile a number of cases, including the recent Petruska decision, which has been discussed on this blog before.

I'll have more to say, I think, when the series is through.  The first two installments, though, leave me with a sense of "they just don't get it" unease.  The storyline owes too much, so far, to the "religion is getting special treatment and is treating people unfairly" narrative, and not enough to the "religious organizations are not the state, and -- if we take religious liberty and limited government seriously -- must have the freedom to organize themselves, select ministers, etc., without being second-guessed by government" account.  We'll see.

The Amish, forgiveness, and righteous anger

By Rick Garnett

A week ago today, Charles Carl Roberts took 10 young girls hostage, tied them up, shot them, and then killed himself.  Five of the girls -- all of whom were Amish -- were killed.  Apparently, two of the older girls asked to be shot first, in an effort to increase the chances of escape or survival for the younger girls.

Although the news-beast has been largely content with its Foley-scandal diet, there have been a number of editorials, stories, and blog posts on Amish beliefs (for example, here, here, here, and here), and on how they are helping members of the girls' communities not only to cope with the horror of the girls' murders, but also to forgive their murderer.  CNN reported:

A grieving grandfather told young relatives not to hate the gunman who killed five girls in an Amish schoolhouse massacre, a pastor said on Wednesday.

"As we were standing next to the body of this 13-year-old girl, the grandfather was tutoring the young boys, he was making a point, just saying to the family, 'We must not think evil of this man,' " the Rev. Robert Schenck told CNN.

"It was one of the most touching things I have seen in 25 years of Christian ministry."

Rod Dreher, of the Dallas Morning News and the "Crunchy Cons" blog, had this column on Friday:

Is there any place on earth that more bespeaks peace, restfulness and sanctuary from the demons of modern life than a one-room Amish schoolhouse? That fact is no doubt why so many of us felt so defiled – there is no more precise word – by news of the mass murders that took place there this week. If you're not safe in an Amish schoolhouse ... And yet, as unspeakable as those killings were, they were not the most shocking news to come out of Lancaster County this week.

No, that would be the revelation that the Amish community, which buried five of its little girls this week, is collecting money to help the widow and children of Charles Carl Roberts IV, the man who executed their own children before taking his own life. A serene Amish midwife told NBC News on Tuesday that this is normal for them. It's what Jesus would have them do.

"This is imitation of Christ at its most naked," journalist Tom Shachtman, who has chronicled Amish life, told The New York Times . "If anybody is going to turn the other cheek in our society, it's going to be the Amish. I don't want to denigrate anybody else who says they're imitating Christ, but the Amish walk the walk as much as they talk the talk."

I don't know about you, but that kind of faith is beyond comprehension. I'm the kind of guy who will curse under my breath at the jerk who cuts me off in traffic on the way home from church. And look at those humble farmers, putting Christians like me to shame.

It is not that the Amish are Anabaptist hobbits, living a pure pastoral life uncorrupted by the evils of modernity. So much of the coverage of the massacre has dwelled on the "innocence lost" aspect, but I doubt that the Amish would agree. They have their own sins and tragedies. Nobody who lives in a small town can live under the illusion that it is a haven from evil. To paraphrase gulag survivor Alexander Solzhenitsyn, the line between good and evil does not run along the boundaries of Lancaster County, but through every human heart.

What sets hearts apart is how they deal with sins and tragedies. In his suicide note, Mr. Roberts said one reason he did what he did was out of anger at God for the death of his infant daughter in 1997. Wouldn't any parent wonder why God allowed that to happen? Mr. Roberts held onto his hatred, purifying it under pressure until it exploded in an act of infamy. That's one way to deal with anger.

Another is the Amish way. If Mr. Roberts' rage at God over the death of his baby girl was in some sense understandable, how much more comprehensible would be the rage of those Amish mothers and fathers whose children perished by his hand? Had my child suffered and died that way, I cannot imagine what would have become of me, for all my pretenses of piety. And yet, the Amish do not rage. They do not return evil for evil. In fact, they embody peace and love beyond all human understanding.

In our time, religion makes the front pages usually in the ghastliest ways. In the name of God, the faithful fly planes into buildings, blow themselves up to murder the innocent, burn down rival houses of worship, insult and condemn and cry out to heaven for vengeance. The wicked Rev. Fred Phelps and his crazy brood of fundamentalist vipers even planned to protest at the Amish children's funeral, until Dallas-based radio talker Mike Gallagher, bless him, gave them an hour of his program if they would only let those poor people bury their dead in peace.

But sometimes, faith helps ordinary men and women do the humanly impossible: to forgive, to love, to heal and to redeem. It makes no sense. It is the most sensible thing in the world. The Amish have turned this occasion of spectacular evil into a bright witness to hope. Despite everything, a light shines in the darkness, and the darkness did not overcome it.

Dreher is right, of course, that the ability of the Amish "to forgive, to love, to heal, and to redeem" is inspiring and humbling.  (Here is a blog post of his on the same subject.)  At the same time, I have to admit to mixed feelings with respect to the question whether we should all react, or even want to react, as the Amish are reacting.  Consider this, from the conservative editorialist Jeff Jacoby ("Undeserved Forgiveness"):

I can't deny that it is deeply affecting to see how seriously the Amish strive to heed Jesus' admonition to return good for evil and turn the other cheek. For many Christians, the Amish determination to forgive their daughters' murder is awe-inspiring. In his Beliefnet blog, the eloquent Rod Dreher marvels at CNN's story of the Amish grandfather. ``Could you do that?" he writes. ``Could you stand over the body of a dead child and tell the young not to hate her killer? I could not. Please, God, make me into the sort of man who could."

But hatred is not always wrong, and forgiveness is not always deserved. I admire the Amish villagers' resolve to live up to their Christian ideals even amid heartbreak, but how many of us would really want to live in a society in which no one gets angry when children are slaughtered? In which even the most horrific acts of cruelty were always and instantly forgiven? There is a time to love and a time to hate, Ecclesiastes teaches. If anything deserves to be hated, surely it is the pitiless murder of innocents.

To voluntarily forgive those who have hurt you is beautiful and praiseworthy. That is what Jesus did on the cross, what Christians do when they say the Lord's Prayer, what observant Jews do when they recite the bedtime Kriat Sh'ma. But to forgive those who have hurt -- who have murdered -- someone else? I cannot see how the world is made a better place by assuring someone who would do terrible things to others that he will be readily forgiven afterward, even if he shows no remorse.

There are indications that the killer in this case may have been in the grip of depression or delusion . Perhaps it was madness more than evil that drove him to commit this horror, in which case forgiveness might be more understandable.

But the Amish make it clear that their reaction would be the same either way. I wish them well, but I would not want to be like them, reacting to terrible crimes with dispassion and absolution. ``Let those who love the Lord hate evil," the Psalmist writes. The murder of the Amish girls was a deeply hateful evil. There is nothing godly about pretending it wasn't.

And this, by John Podhoretz:

I am a modestly observant Jew, not a Christian, but I can certainly see the beauty and the moral seriousness that would follow from attempting to hew as closely as possible to Christ's example of unconditional love and forgiveness. All the same, this story disturbs me deeply — because there can be no question that anger can be as righteous as forgiveness. I'm not sure I would want to be someone who succeeded in rising above hatred of those who murder children. Does this mean that those who harbor hatred of child killers have somehow achieved a higher level of Godliness than those who succeed in banishing such hatred from their hearts? That seems to be a necessary corollary of the idea that it is heroic to "instruct the young not to hate," and that seems very wrong to me.

I have blogged a number of times here about Jeff Murphy's work, particularly "Getting Even:  Forgiveness and its Limits."  This post has already gone on too long, but it seems to me that Murphy provides some deep-thinking -- thinking that is animated by Murphy's Christianity -- that is consonant with Podhoretz's and Jacoby's reservations.

Friday, October 6, 2006

"Grandparents' rights"

By Rick Garnett

A worthwhile op-ed, on the "grandparents' rights" movement.  We can all agree, I suppose, that, generally speaking, preserving and nurturing relationships between children and their grandparents is a good thing.  As I've suggested elsewhere, though, it does not follow that fit parents' decisions about visitation and access should be subject to review-for-reasonableness by courts.   

Thursday, October 5, 2006

PB16 on stem-cell research

By Rick Garnett

Here, thanks to ZENIT, is the text of an addressed delivered recently by the Pope at Castel Gandolfo:

Hall of the Swiss, Castel Gandolfo
Saturday, 16 September 2006

Venerable Brothers in the Episcopate and in the Priesthood,
Distinguished Ladies and Gentlemen,

I address a cordial greeting to you all. This meeting with you, scientists and scholars dedicated to specialized research in the treatment of diseases that are a serious affliction to humanity, is a special comfort to me.

I am grateful to the organizers who have promoted this Congress on a topic that has become more and more important in recent years. The specific theme of the Symposium is appropriately formulated with a question open to hope: "Stem cells: what future for therapy?".

I thank Bishop Elio Sgreccia, President of the Pontifical Academy for Life, for his kind words, also on behalf of the International Federation of Catholic Medical Associations (FIAMC), an association that has cooperated in organizing the Congress and is represented here by Prof. Gianluigi Gigli, outgoing President, and Prof. Simon de Castellvi, President-elect.

When science is applied to the alleviation of suffering and when it discovers on its way new resources, it shows two faces rich in humanity: through the sustained ingenuity invested in research, and through the benefit announced to all who are afflicted by sickness.

Those who provide financial means and encourage the necessary structures for study share in the merit of this progress on the path of civilization.

On this occasion, I would like to repeat what I said at a recent Audience: "Progress becomes true progress only if it serves the human person and if the human person grows: not only in terms of his or her technical power, but also in his or her moral awareness" (cf. General Audience, 16 August 2006).

In this light, somatic stem-cell research also deserves approval and encouragement when it felicitously combines scientific knowledge, the most advanced technology in the biological field and ethics that postulate respect for the human being at every stage of his or her existence.

The prospects opened by this new chapter in research are fascinating in themselves, for they give a glimpse of the possible cure of degenerative tissue diseases that subsequently threaten those affected with disability and death.

How is it possible not to feel the duty to praise all those who apply themselves to this research and all who support the organization and cover its expenses?

I would like in particular to urge scientific structures that draw their inspiration and organization from the Catholic Church to increase this type of research and to establish the closest possible contact with one another and with those who seek to relieve human suffering in the proper ways.

May I also point out, in the face of the frequently unjust accusations of insensitivity addressed to the Church, her constant support for research dedicated to the cure of diseases and to the good of humanity throughout her 2,000-year-old history.

If there has been resistance -- and if there still is -- it was and is to those forms of research that provide for the planned suppression of human beings who already exist, even if they have not yet been born. Research, in such cases, irrespective of efficacious therapeutic results is not truly at the service of humanity.

In fact, this research advances through the suppression of human lives that are equal in dignity to the lives of other human individuals and the lives of the researchers themselves.

History itself has condemned such a science in the past and will condemn it in the future, not only because it lacks the light of God but also because it lacks humanity.

I would like to repeat here what I already wrote some time ago: Here there is a problem that we cannot get around; no one can dispose of human life. An insurmountable limit to our possibilities of doing and of experimenting must be established. The human being is not a disposable object, but every single individual represents God's presence in the world (cf. J. Ratzinger, "God and the World," Ignatius Press, 2002).

In the face of the actual suppression of the human being there can be no compromises or prevarications. One cannot think that a society can effectively combat crime when society itself legalizes crime in the area of conceived life.

On the occasion of recent Congresses of the Pontifical Academy for Life, I have had the opportunity to reassert the teaching of the Church, addressed to all people of good will, on the human value of the newly conceived child, also when considered prior to implantation in the uterus.

The fact that you at this Congress have expressed your commitment and hope to achieve new therapeutic results from the use of cells of the adult body without recourse to the suppression of newly conceived human beings, and the fact that your work is being rewarded by results, are confirmation of the validity of the Church's constant invitation to full respect for the human being from conception. The good of human beings should not only be sought in universally valid goals, but also in the methods used to achieve them.

A good result can never justify intrinsically unlawful means. It is not only a matter of a healthy criterion for the use of limited financial resources, but also, and above all, of respect for the fundamental human rights in the area of scientific research itself.

I hope that God will grant your efforts -- which are certainly sustained by God who acts in every person of good will and for the good of all -- the joy of discovering the truth, wisdom in consideration and respect for every human being, and success in the search for effective remedies to human suffering.

To seal this hope, I cordially impart an affectionate Blessing to all of you, to your collaborators and to your relatives, as well as to the patients who will benefit from your ingenuity and resourcefulness and the results of your work, with the assurance of my special remembrance in prayer.

[Translation distributed by the Holy See]

Welcome to Elizabeth Kirk

By Rick Garnett

I'm delighted to welcome to the MOJ crew my colleague, Elizabeth Kirk.  Elizabeth is the associate director of Notre Dame's Center for Ethics & Culture, and is currently on leave from her law-teaching post at Ave Maria.  Welcome aboard!

Tuesday, October 3, 2006

More conversation with Professor Thai

By Rick Garnett

Thanks much to Professor Thai for his thoughts in response to my post about the Smith case, the Religion Clauses, and Catholic teaching. 

With respect to Smith, I should have been more careful than I was, and made clear that when I say Smith was "right," I mean only that, in my view, the case's holding captures what I think the Free Exercise Clause and the Fourteenth Amendment actually mean and require.  Like Professor Thai I suspect, I worry that, by leaving the exemptions question (pretty much) to the political process, Smith leaves open the possibility that such exemptions will not be granted, even when they should.  (That said, the political process has responded in many ways, with state-law RFRAs, the federal RFRA, the RLUIPA, and so on.)

Now, in Dignitatis humanae (link), and in the Catholic social tradition generally, it is clear that religious freedom is a fundamental human right.  In DH, we read, for example (par. 2):

This Vatican Council declares that the human person has a right to religious freedom. This freedom means that all men are to be immune from coercion on the part of individuals or of social groups and of any human power, in such wise that no one is to be forced to act in a manner contrary to his own beliefs, whether privately or publicly, whether alone or in association with others, within due limits.

And (par. 2):

Therefore the right to religious freedom has its foundation not in the subjective disposition of the person, but in his very nature. In consequence, the right to this immunity continues to exist even in those who do not live up to their obligation of seeking the truth and adhering to it and the exercise of this right is not to be impeded, provided that just public order be observed.

And (par. 3):

Injury therefore is done to the human person and to the very order established by God for human life, if the free exercise of religion is denied in society, provided just public order is observed.

And, finally (par. 7):

The right to religious freedom is exercised in human society: hence its exercise is subject to certain regulatory norms. In the use of all freedoms the moral principle of personal and social responsibility is to be observed. In the exercise of their rights, individual men and social groups are bound by the moral law to have respect both for the rights of others and for their own duties toward others and for the common welfare of all. Men are to deal with their fellows in justice and civility.

Furthermore, society has the right to defend itself against possible abuses committed on the pretext of freedom of religion. It is the special duty of government to provide this protection. However, government is not to act in an arbitrary fashion or in an unfair spirit of partisanship. Its action is to be controlled by juridical norms which are in conformity with the objective moral order. These norms arise out of the need for the effective safeguard of the rights of all citizens and for the peaceful settlement of conflicts of rights, also out of the need for an adequate care of genuine public peace, which comes about when men live together in good order and in true justice, and finally out of the need for a proper guardianship of public morality.

Smith is, it seems to me, consistent with the Church's teaching that religious freedom is fundamental and that the exercise of religion may and should be subject to certain "regulatory norms," consistent with "just public order."  The rule of Smith is consistent with the view that religiously motivated conduct may and should be exempt from generally applicable laws (so long as it would not harm the common good to exempt it).  At the same time, the Court insisted, the Constitution does not authorize judges to second-guess the decisions of the politically accountable branches with respect to whether or not a particular exemption should be granted.  I don't think the Church presumes to teach that the balancing inherent in, say, the passages quoted above must be conducted by a court, rather than a legislative body.  

On the coercion point, Professor Thai should not be "embarrassed," because I'm sure that I misunderstood him!

With respect to Professor Thai's next set of observations, about different Catholic justices' views on accommodation, and his claim that some current Catholic justices "tend to favor majority or mainstream religions," while Justice Brennan "tended to be more constitutionally protective of minority religions":  I would probably disagree with the view that the current Catholic justices "favor" majority religions.  That said, it is true that an approach like Justice Brennan's is likely, in practice, to require religion-friendly exemptions for members of minority religions, primarily because, in his view, they can be easily accommodated without doing harm to what he regards as the state interests at stake.

Of course, my friend Tom Berg, church-state guru that he is, is going to set me straight on all of this.

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