The oral arguments in the Hobby Lobby case have been fascinating. Both sides presented competent arguments that were, at times, legally compelling, but Pres. Obamas Solicitor General Donald Verelli made a genuine blunder toward the end of his argument - one that may well cost the government the case - by arguing that a kosher butcher, who enters the world of commerce, must give up his religious liberty by doing so. This seems quite likely to cost him the vote of both of the Jewish Supreme Court justices, Breyer and Kagan, by drawing out the implications of the States case against religious privilege in a way that is bound to be of concern to the Jewish community. The Solicitor Generals flub occurred in response to an inquiry about Jewish Kosher practices, behaviour that has generally considered a religious motivated practice protected under the First Amendment, given that Kosher slaughterpractices are prescribed by Jewish law. So when Justice Alito asked if a kosher slaughterhouse could bring a First Amendment challenge to a hypothetical law requiring that animals be stunned or rendered unconscious before slaughter in their facility, Verelli quite bluntly said no. When a perplexed and concerned Breyer asked him again, Verilli said that the state was arguing that any commercial enterprise, even if it wasnt incorporated, existed outside of the legitimate zone in which ones religious liberties could be legally protected. Breyer didnt take very well to this rather chilling insight into the Obama administrations positions on the issue, and adopting a hectoring tone lectured Verelli rather severely, saying, and I quote: You are telling every Jew who goes into business that if you use a corporate form you are giving up your freedom of religion. It was an ugly moment for the government, especially since, as the government was actually arguing much more strongly than that, there was no possible grounds for retreat. What was made abundantly clear is that this administration is clearly seeking to use this case to reduce the strict scrutiny standard requiring compelling governmental interest to refuse to accommodate religiously motivated behaviour. In my opinion, at least, the exchange strongly suggests that Breyer, possibly Kagan, and almost certainly Kennedy, are going to join the four SCOTUS conservatives in ruling in favour of Hobby Lobbys right to bring their claim. Whether these justices will ultimately agree on whether Hobby Lobby prevails is another question of course, but again, in my opinion, this secondary matter is almost irrelevant. For those of us who are concerned regarding the state of religious liberties, and who do not want the secular state to prevail in minimizing the impact of religious belief and practice in the public life of our nation, it is of much less significance that Hobby Lobby prevails than that a religiously owned company can bring a religious First Amendment claim to the attention of the court. This is an avenue of legal access that must remain open if the legitimate First Amendment rights of religious citizens are not to be significantly, and frighteninly, attenuated.
Posted on: Mon, 31 Mar 2014 02:06:47 +0000
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