In his opinion dissenting from denial of cert in Storman's, Justice Alito wrote that "If this is a sign of how religious liberty claims will be treated in the years ahead, those who value religious freedom have cause for great concern." To which Michael Sean Winters responds, "Bosh." I'm afraid, though, that Alito is right, and Winters gets it wrong, on this one. Winters frames the issue in terms of his underlying view that it is a mistake to see for-profit corporations as having religious freedom. He writes, "The claim [in Storman's] rests not only upon a certain valuation of religious freedom but as well on a certain understanding of a corporation."
I understand Winters's argument that we should "draw a clear line between the religious rights of our religious organizations and the rights of secular corporations." I've made a similar argument myself. Here, though, nothing about Storman's and the claim presented in that case actually turn on this point. The issues on which review was sought have to do with (a) whether the government should be able to target religiously motivated conduct for regulation and, relatedly, (b) whether the government's willingness to accommodate or exempt some claimants from generally applicable laws creates a presumptive obligation to extend similar solicitude to religious claimants. As it happens, that issue was presented in this case by a corporate entity -- a drugstore and grocery -- but that fact was not relevant to the arguments made by the claimants, and the dissenting justices, for review. (We don't know if it was relevant to the decision by the other justices not to vote for cert.)
That the Court allowed to stand the lower-court ruling could mean -- we'll see how other courts read it -- that that ruling stands as authority for the proposition that governments may treat religious claims for exemptions worse than others or may selectively single out religiously motivated conduct for regulation. This is why, given the current political controversies, the case is -- as Justice Alito said -- "cause for great concern" and, indeed, "ominous."
Again -- there's room for reasonable arguments about whether our religious-exemptions regime should treat non-profit and religious corporations differently than for-profit ones. (Currently, given Hobby Lobby, that distinction should not matter very much for RFRA purposes, though.) I'm nervous about any suggestion that religious-freedom, or "religion", is something to be excluded from the business, commercial, and economic worlds but, again, there's room for discussion on this. That said, Justice Alito's concerns about the implications of Storman's are well founded, not "bosh."
Here's Dan, at the "Lawfare" blog, with "Culture War or Common Heritage? On Recent Critics of Global Religious Freedom". Dan is reviewing two new books that have been getting a fair bit of notice, Elizabeth Shakman Hurd's Beyond Religious Freedom: The New Global Politics of Religion (Princeton, 2015) and Saba Mahmood's Religious Difference in a Secular Age: A Minority Report (Princeton, 2016). Here's a bit:
Hurd’s and Mahmood’s commitments and criticisms ring strikingly similar. Both books bear the footprints of the late French philosopher Michel Foucault on every page. Both authors also draw heavily upon the analysis of the contemporary anthropologist, Talal Asad, whom Foucault influenced in turn. From these fonts flow four tenets shared by Hurd and Mahmood.
The first is a characteristically postmodern rejection of universals. Both authors actively doubt what the human rights conventions assert: that religious freedom is a universal right, belonging to every human being and every religious community. There cannot be religious freedom because there is no such thing as religion. . . .
The second tenet, also exuding Foucault, is that the promotion of religious freedom (or religious minority rights) is a projection of power. . . .
Their third shared tenet is that modern religious freedom and the notion of religion on which it is based are products of developments in Western history, especially the Protestant Reformation and the Enlightenment. . . .
Fourth and finally, each makes the normative judgment that the West ought not to export religious freedom (or religious minority rights). . . .
If Hurd and Mahmood are right, then the rise of religion policy in the West – the promotion of religious freedom, religious minority rights, and religious forces that favor democracy, tolerance, peace, reconciliation, humanitarian aid, women’s rights and the like are misbegotten and ought to be abandoned. Are they right?
Well . . . read Dan's essay and find out!
Tuesday, June 28, 2016
Here are our own Kevin Walsh and Erika Bachiochi on yesterday's deeply disappointing decision in Hellerstedt. Must-reading (thanks to SCOTUSBlog).
I've read commentary by some on the pro-life side who contend that the decision represents only a minor set-back. Charlie Camosy, for example, says it's not the "decisive setback . . . it seems to be." I hope he's right, but I fear he's too optimistic. It's not simply that Justice Breyer and his colleagues decided that the regulations in question didn't do enough to protect women's health to justify the burden they thought the regulations imposed on the abortion right. More troubling is what seems to me the fact that the so-called "undue burden" standard has been racheted up (just as, in my view, "strict scrutiny" was racheted down in the college-admissions case last week). And, even though Justice Kennedy had said for a majority in the partial-birth-abortion case, a decade ago, that the state has an interest in protecting fetal life and respecting the dignity of the unborn child throughout pregnancy, he joined Justice Breyer's opinion which I predict will be read by many as holding that, before viability, the state's only legitimate regulatory interest is protecting the health of women obtaining abortions. We'll see.
