“Much thanks to Prof. Garnett for taking the time to respond thoughtfully to my two novice questions. I very much appreciate his kindness in responding and his considered reflections. If I may pursue the thread further, I’d like to offer a question, a clarification, and a tentative observation.
First, with respect to Free Exercise, Prof. Garnett writes that it is “entirely Catholic” to leave it up to the legislative branch to grant religious exemptions from neutral, generally applicable laws, and that the legislature need not grant them when “damaging to the common good.”
As I wrote earlier, I am not a scholar on Catholic thought. However, my “gut” Catholic reaction to Smith is what Prof. Garnett posits might be the reaction of most of the other MOJ-ers, i.e., that Smith was wrong. And my reaction is based on speculation as to the Church’s likely response to various hypothetical situations, including one in which all states revoke their legislative exemptions for underage drinking in the case of sacramental wine. In the absence of Smith, would the Church simply seek state-by-state legislative reversals, or would it also argue that even non-discriminatory legislation that bars religious practices infringes upon religious freedom, both in a Catholic and a constitutional sense?
Second, let me clarify my enigmatic comment about the views of the current Catholic justices on the Establishment Clause. I did not mean to suggest (and am embarrassed that I apparently did) that they would view “actual coercion” as fine. On the contrary, I agree with Prof. Garnett that no justice, of any religious or ideological stripe, believes that. I meant to make the opposite point. To my knowledge, every justice, current and former, accepts that the EC at minimum prohibits actual coercion. The current Catholics simply split as to what kind of coercion qualifies. See Lee v. Weisman (Kennedy—“subtle and indirect” coercion prohibited; Scalia & Thomas—only direct coercion “by force of law and threat of penalty” counts).
What is interesting to me is that these Catholic justices apparently also regard this constitutional minimum as the constitutional maximum, see Allegheny County (Kennedy, dissenting, with Scalia), or at least coercion + “neutrality.” None of them like the less religiously accommodating (and more subjective) endorsement test, and they all are hostile to the least accommodating EC principles of Lemon. See, e.g. Lamb’s Chapel (Scalia, concurring, with Thomas); McCreary County (Scalia, dissenting, with Kennedy and Thomas). Brennan seems to be the only Catholic justice to have embraced Lemon. See, e.g., Lynch (Brennan, dissenting). So, on the EC side, we have three Catholic justices who incline towards accommodation (Scalia, Kennedy, and Thomas), and only one who has inclined towards a strict view of separation (Brennan).
Now for my tentative observation. It appears that the views of the current Catholic justices on both clauses tend to favor majority or mainstream religions, which is what Catholicism is now (can anyone doubt it, with a majority of them on the Court?). These religions have the least need for constitutional protection of their religious practices, because they are politically powerful enough to obtain legislative accommodations. By the same token, they may have less to fear, and likely more to benefit, from a view of the EC that allows greater public accommodation of religion. Prayers at graduation, monuments on public grounds, and vouchers to parochial schools are more likely, respectively, to be said by, reflect, or go to mainstream religions than minority ones (e.g., I’ve yet to see a Wiccan pentacle at a state capitol). Am I wrong?
On the flip side, it appears that Brennan’s views on both clauses tended to be more constitutionally protective of minority religions. This majority/minority divide between the Catholic justices appears to reflect somewhat their general jurisprudence. But does it also reflect their Catholicism?
Finally, let me make clear that in making these tentative observations, I am not yet implying motivation. Nor am I asking (yet) the more fundamental question whether Catholic justices should vote their religion (which they all seem to put aside at their confirmation hearings). At this stage, I simply want to explore further the preliminary questions about what might be “Catholic” views of free exercise and establishment. Thanks for helping me to think about these issues more deeply.”
Monday, October 2, 2006
As the Supreme Court starts its first full term with five Catholic justices, my colleague, Joe Thai has two questions pertaining to Catholic Legal Theory and the Religion Clauses of the First Amendment:
“My colleague Michael Scaperlanda has graciously agreed to post to this blog a few questions of mine related to the religion jurisprudence of Catholics on the Supreme Court.
With the addition of Justices Roberts and Alito, the Court now has a Catholic majority. The others are, of course, Scalia, Kennedy, and Thomas. I have often been struck by the influence that Catholics have had in the development of the Court’s modern jurisprudence in both the Free Exercise and Establishment areas. With respect to Free Exercise, Brennan gave us Sherbert, which Scalia’s Smith overruled. Kennedy then invalidated Congress’ attempt to overrule Smith (RFRA) in Flores. With respect to Establishment, Catholics have been less dominant (who, other than O’Connor, has?) but no less forceful, and their views appear somewhat closer in alignment, along the axis of coercion (direct, in the case of Scalia and Thomas, and indirect, in the case of Kennedy).
I recognize that these are simplifications of the nuanced views of the Catholic justices, but I hope they’re adequate to set up my questions, which are (1) what, if anything, is “Catholic” about the jurisprudence of these justices; and relatedly, (2) is it possible to identify what a “Catholic” position should be to on, say, the conflicting Sherbert and Smith approaches to FE, or the various EC principles out there.
Although I’m a Catholic myself, I am no expert at Catholic jurisprudence, and would very much appreciate any insights members of this blog may share on these questions. Thanks.
Joseph Thai
Associate Professor of Law
University of Oklahoma College of Law
P.S. I apologize if these questions have been discussed before, and if so, would appreciate pointers to the relevant discussion. I’m treading with some trepidation as an uninformed interloper!”
Tuesday, September 19, 2006
WWJD - Who would Jesus Deport?
Friday, September 8, 2006
MOJ friend and alum, John Breen, responds to Eduardo’s post on abortion and slavery:
“When slavery was in full swing in this country, people were in fact talking precisely about the sorts of prudential judgments that Eduardo finds extreme today (e.g. whether slavery should or could be confined to the South or whether it could or should be extended to the territories, the Fugative Slave Act, etc). And so the analogy isn't "intended to rule out as unreasonable any discussion of possibility that the legality of abortion might be tolerable on prudential grounds." On the contrary, it invites such a conversation in the present day.
But recognize that the prudential conversation about the "peculiar institution" took place when slavery was in full swing, just like today is the hay day for the culture of death. Today, no one would consider reasonable an argument that tolerated a little bit of slavery, just like some day, we can all hope and pray, no one will consider reasonable an argument that would tolerate a little abortion. What is reasonable is obviously in part a function of where the culture is. Just as the culture of today is a far cry from what it was in the antebellum South, so too we can pray that the culture in our country as a whole will one day reflect a culture of life.”
