JUSTICE SCALIAS OPINION in the Smith case offered a number of grounds for the conclusion that the Free Exercise Clause does not entitle religious objectors to exceptions from neutral laws of general application, Dorf wrote in SCOTUSblog, observing that Scalia also posited that judges werent competent to decide which religions were deserving of exemptions. In response to Scalias decision, Congress passed the Religious Freedom Restoration Act in 1993, which says any law that substantially burden[s] a persons exercise of religion must demonstrate a compelling governmental interest and employ the least restrictive means of furthering that interest. Thats the basis under which Hobby Lobby and Conestoga Wood, two businesses with religious owners, are suing for relief from the birth control rule. And that might offer Scalia an escape hatch. Experts say he could conceivably decide that the First Amendment doesnt protect a religious persons entitys to an exemption from the law but that RFRA suffices to let Hobby Lobby and certain others off the hook from the birth control rule. But even then, the RFRA argument isnt clear-cut. Nineteen Democratic senators who voted for the law in 1993 have filed an amicus brief insisting that it doesnt -- and was never intended to -- give for-profit companies a pass on the law. Its up to Scalia and the other justices to parse that question. If he axes the mandate on the basis of RFRA, he still has to contend with his earlier argument that such an outcome carries grave dangers for the rule of law. To permit this, he wrote in Smith, quoting from an old court decision, would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself. Great to know about the amicus brief that was filed by Democrats regarding the intent of the RFRA. And not just that, a ruling favorable to the employers religious rights over the individual opens the door for Sharia-type law and behavior, ironically exactly the thing that the RWNJs rail against (in their imaginations) about Obama, that would entitle religious objectors to exceptions from neutral laws of general application. talkingpointsmemo/dc/antonin-scalia-past-haunt-him-on-birth-control
Posted on: Mon, 24 Mar 2014 19:57:30 +0000
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