If you look at claims … made by religious business owners or religious employers who were seeking exemptions from federal legal protections, in case after case the court said … we can’t grant that without compromising critical civil rights, and undermining general protections that are important to employees. And it seems … [Scalia is] trying to, under the guise of interpreting RFRA, create a host of claims to religious exemptions that really don’t have any foundation in anything the court has ever said about the meaning of the Free Exercise guarantee … When Congress is acting to ensure that women have access to the full range of contraceptives, to protect their health, and to protect their reproductive freedom, and to protect their ability to make life choices … we have a very divided court that may well go so far as to say secular for-profit corporations — which are bodies that don’t have freedom of conscience in the way that individuals have — can override those individual rights. And impose their religious beliefs on their employees, which I think is very troubling. Today we just heard the argument. And I think, you know, what we’re going to see is a closely divided opinion. And at the same time I think it’s troubling to see a number of justices on the conservative wing pressing this broad view of religious exemptions that are really unprecedented in law. You know, there’s always a gap between what happens at argument, and what happens in the final opinion … And it is important to recognize that Justice Kennedy showed concern about just allowing an employer’s religious claims to trump the rights of the employees who don’t share those religious beliefs … That’s something that the court will have to wrestle with. Is there a set of reasonably consistent grounds on which Scalia could side with Hobby Lobby here without contradicting his decision in Smith? Well, obviously Congress, in passing RFRA, rejected Smith and established greater statutory protections … The fundamental question in this case concerns … the meaning of those statutory protections. The whole idea behind Smith was [to] restore the status quo … in which there were some [who] sought religious exemption, which were granted, but many of them were denied. And there was a balance to those cases which was recognized, and one aspect of the balance … [the Obama administration] emphasized was: A commercial enterprise, you know, couldn’t simply override and impose its own religious views on that of its employees. And it seems like, from a number of conservative justices, the thrust was sort of to rewrite that balance, [which] produces [an] RFRA that has no roots in everything the Supreme Court has said about Free Exercise … RFRA was designed to … not say who should win claims for religious exemption, but [rather to] say the Supreme Court had been wrong in Smith to sort of say they’re categorically prohibited. Sometimes they should win. Sometimes they should lose. And so there’s a balance there …which would include the claims of the employees. But it seems like Clement, and a number of the conservative justices, want just to bury under the rug any interest employees have in their own personal liberty, and their own human dignity, and their own ability to act on their own conscience and moral beliefs.
Posted on: Thu, 27 Mar 2014 19:14:09 +0000
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