Sheridan: Con-Law

RELIGION & LAW

I've spent the weekend walking, talking and reading law, religion law, mainly.

On Friday I picked up Marci Hamilton's God vs. the Gavel and lost a lot of sleep reading it.  Prof. Hamilton is a conlawprof at Yeshiva U. Law School in NYC, and is the attorney who won the Boerne v. Flores, the Archbishop, case on religion, zoning, RFRA, Congressional Power, etc. 

I never liked the Boerne case, probably because my introduction to it was John T. Noonan, Jr.'s book "Narrowing the Nation's Power," which I always bring up to my class as a great explanation of a lot of important law.  He writes about law and religion and is a 9th Circuit judge, senior status, I believe.  He would take issue with Prof. Hamilton on a number of counts.

Hamilton takes on the scholarship of her opponent in Boerne, Douglas Laycock, another distinguished conlawprof and attorney whose particular interest is in religion and the law, and the scholarship of Michael McConnell, recently appointed to the U.S. Circuit Court of Appeal somewhere by Pres. G. W. Bush.

So we have all these smart, distinguished lawyers kicking the First Amendment around to see what it really means.

Prof. Hamilton starts out hot, but it's her ending that leaves me feeling at a bit of a loss.  I, naturally, after spending all weekend reading her book, wanted to find the answer, only I didn't find it.  Well, I found her answer, but it left me dissatisfied.  Now I have seen a much different take on the relevant case law, but I also see what I take to be a self-contradiction in Prof. Hamilton's prescription for the fix that she says we need. 

I don't like self-contradictions because they undercut all the good stuff you've already said.  Prof. Hamilton serves up a full-platter of good stuff and uses the material well in order to formulate her basic attitude to how the law should treat religion.  It's just that her proposed solution falls short.  Perhaps "inevitably" falls short because I don't think that there can be a definitive answer or test for the problem she's wrestling with and she's a terrific wrestler.  She's so wrapped up in the history and the law, which are indistinguishable, that she may be having difficulty stepping back and taking an outsider's look at what seems obvious to this innocent bystander.

It used to be the other way around, when we worried about the basic attitude that someone, like a king or a reformer, put forward about how religion should treat the law.  That was when religion was in full control.

Prof. Hamilton notes that in early English common law history, say before Henry II (he's regarded as the father of common law) the church (Catholic, then, way before the Reformation) existed alongside the king.  The church was controlled by Rome but crowned the king in London and a few other capitols.  The church had its own courts.  Only clergy (clerks) could read and write.  When a clergyman committed a crime, he was tried in a church court.  Felonies at common law brought the death penalty, but not if you had the benefit of clergy (could read), for then you were only sentenced to spend two years in a monastery.  Churchmen were a law unto themselves and enjoyed it to the hilt.  Plain folks didn't like this unequal treatment one bit, nor did the King, Henry II.  He made the effort to shut down the ecclesiastical courts, which took about 400 years to accomplish.  Henry II is the king who made the famous remark, "Who will rid me of this troublesome priest," not the real quote, but that's the gist, which resulted in the murder of the archbishop in the cathedral at Canterbury, Thomas Becket, by four dutiful barons with good hearing.

When Martin Luther and John Calvin proposed and advanced the Protestant Reformation to try to cure church abuses in their own Roman Catholic churches, Henry VIII found the answer to ridding himself of meddlesome priests in his backyard, by breaking with Rome and setting up his own shop, called the Church of England, today's Anglicans and, in America today, Episcopalians, sort of Catholics Lite. 

His daughters, Mary and Elizabeth I, were pieces of work all their own.  Bloody Mary persecuted Catholics and Elizabeth I persecuted Protestants, in the Bloody Tower of London.  Henry VIII set up to special courts, called prerogative courts, because he set them up by fiat, one called the Star Chamber for secular offenses like treason, and the other, called the High Commission, for religious offenses.  Henry controlled both, shutting down the former ecclesiastical courts.

Only now, with both the civil and religious courts under his thumb, if you didn't believe as you were supposed to, that was treason, a civil offense that wasn't too hard to prove.  Walter Raleigh found this out after he fell out of favor with Elizabeth and was convicted on hearsay, and then hanged drawn and quartered the way you saw happen to William Wallace in London in the movie "Braveheart," regarding an earlier age.

Ancient history, you say.

The past isn't dead, I say, along with Bill Faulkner, it isn't even dead.  Our Supreme Court relied on the Raleigh case this past term in the Crawford case to rule unconstitutional criminal convictions obtained by relying overmuch on hearsay.  See the link to Crawford in the marginal resources and you'll find a whole blog devoted to the subject.  The Crawford blog's creator was co-counsel in the case and provided the history, as he's a professor of law at U. Michigan and a specialist in the history of hearsay.  Justice Scalia ate it right up, and good for him, that was terrific.

Our Founding Fathers and Mothers were fully aware of the evils committed in the name of religion, as they're the ones whose parents did the fleeing over to America and they continued to watch as the English Civil War raged and people were hanged or burned for running afoul of what you were supposed to believe if you wanted to get along with the king and the ruling religion, which had a bad habit of switching from Bad to Worse to Worse-Than Worse.  Catholic, Protestant and Puritan, that is, in the old days, of course, when one or the other ran the show at the expense of the others.

You've got to watch out for those Christians when they get their hands on the reins.  The latest episode is occurring in the military where the Evangelical Christians seem to have become the leading influence among the military chaplains.  Nothing wrong with that is there, being good Christians, and all?  Well, when you're an Evangelical you believe it is your duty handed down from God to spread the good word, which is what "evangelical" means in its original Greek.  "Eu" (pronounced in Greek as "ev" as in Leftenant -- we say lieutenant) means good.  Angels are the messengers of God.  And what do messengers of God spread?  The good word, or gospel, for short.  Why would that be a problem in the military?  Because in the military the chaplains are supposed to minister to the soldiers etc., who want ministering to, not reaching out for converts.  But that's not how they see things, apparently, some of the chaplains, that is.  So there's this problem in the government.

You and I know that if you give a church, meaning its priests, too much power, too much trust, and not enough oversight, there's going to be a problem.  That's what the child abuse scandal among Catholic priests has been all about, with children being molested and harmed for life, priests being either spirited away to other parishes when caught, and now prosecuted and costing their archdioceses hundreds of millions of dollars, with some near bankruptcy, over church incompetency and malignancy.  For a group whose business it is to tell people how to live morally, they screwed up big time, I'm afraid, and their moral authority to speak out on other issues has been compromised if not ridiculed.

I haven't seen any sign that any significant part of America has a problem with holding errant priests criminally liable, or their employer civilly liable under respondeat superior for priestly wrongdoing.  Prof. Hamilton notes, however, the efforts that archdioceses have made to avoid producing evidence on the ground that as religious entities they were some protected, constitutionally, from having to produce the documents. reports, complaints, etc., as though they lived outside the law.  She has a point.

Prof. Hamilton's thesis is that religious ideas grip us with more strength than so many other, non-religious beliefs.  Therefore they deserve special attention.  Some accommodation should be made for them, but not too much.  The public welfare is much more important.  She would leave this to the legislature in our democracy, not the courts, because what do judges know.  Legislatures can take all sorts of evidence in hearings and do the right thing.  Where Prof. Hamilton falls down, however, at least I think she falls down, is in saying that courts and judges should not be making exceptions or exemptions for religious ideas since that should be reserved to the legislatures to do.  But she says, there's one kind of religious exemption law that not even legislatures should make and that is what she calls a "blind" exemption.  That's the kind that says, in effect, "notwithstanding any other provision of law, religious entities or their adherents may nonetheless do [something, like ignore certain zoning or drug laws] that conflict with their religion.

Prof. Hamilton points to two cases that sum it all up for her:  Smith and Boerne.  In Smith the Supreme Court said that Oregon's general, neutral laws prohibiting various narcotic drugs, like heroin, cocaine, marijuana, and peyote, to name a few, were constitutional because the legislature could find them harmful, that is, against the public welfare.  However, if the legislature wanted to make an exception for sacramental peyote, that was okay, just as during Prohibition government could make an exception for sacramental wine, or California has done for medical marijuana.

Here's where I'm having trouble following Prof. Hamilton's line of reasoning. She says that the legislature ought to grant an exemption for Mr. Smith, an American Indian who used peyote in his Native American Church evening sweat-lodge ritual, since to such a user it is not really harmful.  Doing so puts him in tough with his Great Spirit (my words, not hers).

The problem arises when the Oregon legislature refuses.  Mr. Smith still needs to look to a higher law than the Oregon legislature.  That's why he knocked on the door of the U.S. Supreme Court, citing his freedom to follow his beliefs, but the door was slammed shut on him.

That's when Congress passed RFRA, the Religious Freedom Restoration Act.  Counsel for the group of religious organizations that sponsored that piece of legislation was Prof. Douglas Laycock, of the U. Texas Law School.  Hamilton calls it the worst sort of religious accommodation law because it doesn't say anything about Mr. Smith's need to use spiritual peyote.  It just says that anyone can have an exemption from any law of neutral and general application if it violates their religious conscience, in effect.  This would be like allowing people to exceed the speed limit if God was talking to them.

So we continue to have this problem of what to do about general laws and religious people who need specific exceptions to them.

I see the problem.

It can be a real problem, but not in every case.  Some men have murdered their wives and children because they saw a vision of God telling them to do this to get in good with him, yet they are held accountable.  They get no exemption for being religiously motivated.  A lot of sin, and crime, has occurred in the name of religion.

I admire Prof. Hamilton's marshaling of the historical evidence to show all the terrible things that people have done in the name of religion.

I accept that some accommodation to religious needs should be allowed provided it does no harm to the public welfare, all the other motorists, say, and wives and children.

It's just that I don't know how to do it if the legislature won't, and I don't think Prof. Hamilton has a good handle on it yet either, and not for any want of trying.  It is a super-human problem to which I don't expect to see a good human answer in my lifetime, or Prof. Hamilton's.  It's not that she isn't as sharp as they come, it's that the problem is circular in nature.  You can't solve a word problem, or an idea problem by throwing more words at it.  At some point some person or institution, be it king, parliament, Congress, or the Court is going to have to pick up the proverbial sword and take a whack at the Gordian Knot.  It's going to result in an arbitrary cut that leaves some disappointed religious, and secular people, on the unhappy side of the cut, which is going to be both sides, actually.  Because you cannot satisfy everyone.  There will always be some with a righteous cause of serious disgruntlement, and then we will see Congress approached, or the President and his agencies, or the Court.

Prof. Hamilton realizes this.  Her major point is that religion, like everything and everyone else in society, is legally bound to do no harm, otherwise they're unaccountable, above the law.  We don't allow that to presidents, we should have long put that past us when it comes to religion. 

I agree. 

We still have to figure out a way to accomplish this. 

Someone is going to have to have the final say, and in our system, we know who that is, don't we.

What's it called?

The Supreme Court, with its power of judicial review.  The Court is our Gordian Knot Cutter.  It may extend an invitation to the political branches to craft a close-tailored remedy, but when they don't, "Thwack," down comes John Marshall's Big Axe, once again, until someone gets it right.

What I found a bit self-contradictory in Prof. Hamilton's prescription for a solution, the recommendation that the problems will be solved when the legislature takes the bull by the horns, conducts open hearings, forces the lobbyists to reveal who is pushing what changes, etc., is that she doesn't say what is to happen, or what the rule should be when the legislature fails to do that.  The legislature is supposed to look after the public welfare, and if only they would pass legislation with that in mind, everything would probably be okay, but legislatures are mischievous creatures who respond to money and votes, not always to some abstraction of "the public good."  Money and votes help many a legislator to see the public good in creative ways that are consistent with the views of the donors and voters.

Which brings us back to the Supreme Court, whose members serve for life on good behavior and don't need to grub for votes and the campaign funds needed to get them.  They just vote.

What rule is the Supreme Court supposed to use to strike down legislation that steps on the toes of the religious people?  There is no rule.  The Supreme Court makes up the rules as it goes along.  Look to Boerne, says Hamilton.  Well, Boerne is part of the problem.  There was no rule allowing the Court to strike down Congress's new RFRA legislation.  The Court had to invent a new one.  And the new one it invented put the Court square in the middle of Congress's business.  Prof. Hamilton says that the Court should mind its own business and not enter the business of legislatures which is to take evidence and balance equities and enact laws that are in the public good.  That's what Congress thought it was doing in RFRA. 

But the Court looked over Congress's shoulder and said,

"Your evidence stinks.  You've built an elephant gun with which to shoot a gnat.  We cannot allow you to do that.  There's no big problem out there in the country as far as we can see, and we read the newspapers too, that requires you to pass such a broad piece of legislation.  You are trying to allow zoning exemptions for general, neutral zoning laws, for all the houses of worship that want them, and there could be thousands.

Congress, you've exceeded your power and starting right now, we're narrowing it."

Prof. Hamilton likes this.  Noonan doesn't.  Hamilton thinks the public welfare is protected by such Supreme Court rulings.  Noonan thinks the Court is in a turf battle with Congress over power.  After all, RFRA specifically mentions the Smith case as the reason for RFRA's passage, to overrule the Supreme Court.  We all know who has to win this battle right?  Right, the institution that has the power of having the final say, the power of Judicial Review, John Marshall's power, the Supreme Court of the United States.

So I applaud Prof. Hamilton for bringing her considerable body of historical and contemporary evidence to bear on a problem that isn't going to disappear any time soon, and for putting it into a clear context that all can easily understand.  Religious belief is capable of causing the greatest of harm and must remain under good control at all times.  I wholeheartedly agree with her good presentation of this.  She has surveyed the relevant European, English, and American history as far as I, as an interested non-specialist can see, and told the truth.

As disappointed as I may be that I haven't found the ultimate answer, I cannot fault Prof. Hamilton for flagging at the end.  The effort is exhaustive, and there is no single formulation that will cover all cases.  We're going to have to work it out issue by issue while trying to keep in mind the big goals, which she sets forth well, during the heat of the battle.

I'd like to see Volume Two, starting with Chapter Ten, building from there, and what I'd expect to see is a proposed model piece of legislation for use in prisons, the military, the abortion and stem-cell controversies, etc., that balance the equities, the way Prof. Hamilton suggests is needed in order to protect the public welfare, religious sensibilities, and the necessary reasonable accommodations that are sometimes necessary and sometimes not.  That's going to be an even harder task than the one she's gotten on paper so far, which is considerable indeed.

So, my hat is off to Prof. Hamilton for a noble effort.  Not her fault there's no good short answer.  She made a good run at it.  There's more to go. 

You can see her interesting columns commenting on law and religion at Findlaw.

Then the Puritans, many of whom were run out of town for refusing to cooperate

Our Founding Fathers

THE SELF-DEFENSE OF CONSCIENCE AS AN EXCEPTION TO THE OPERATION OF GENERAL LAW

A boyhood friend and I were catching up after a long hiatus and he was asking where constitutional law came from, basically, and wanted to know whether there was some book on legal history that law students and lawyers all studied from so they'd know what the history was that shaped the law.

Well, I was forced to tell my old friend, there's no single history that provides that information definitively.

I'm not sure we'd want one.

If I published the Definitive Legal History of U.S. Constitutional Law, you can be sure it would be laughed off the bookshelf, and not just because I'm the one who wrote it, but because there's no such thing.

History is what we say it is and depends entirely on our point of view.  We all know that there was a guy named Napoleon who managed to kill more French soldiers than the British, although they helped,  but what was his significance?  He ran all over Europe with armies, got ran off, came back and tried to do it again.  He was trying to overthrow monarchy.  We don't like monarchy.  We should be rooting for Napoleon at Waterloo, right?  Wellington and the forces of the king, along with the Prussian general, Blucher, of the shoes, defeated Napoleon, who needed defeating, because he was causing a lot more trouble than he was worth.

His activity affected us here in the U.S., too, preceded by the French Revolution and the overthrow of the French monarchy and power of the aristocracy.  Jefferson loved the French.  Hamilton didn't.

It would be difficult to understand the early development of the U.S. without appreciating the influence of the French Revolution and the power of Napoleon, a product of that revolution.  One little example:  Napoleon sold us Louisiana, the middle third of the country for $15 Big Ones, to pay for his wars in Europe. 

Are we glad we helped to keep him busy over there so he couldn't bother us over here?

History, it seems, like beauty, is in the eye of the beholder, and I don't know how to fit Napoleon in.  He's a bit too complicated for the likes of me, and for others too, I guess, otherwise there wouldn't be so many books written about him and whether he was good or bad.  That depends entirely on your point of view.

So I told my friend he was free to read all the history he wanted and to draw his own conclusions.  I couldn't help him out.  I could recommend a few books that I enjoyed and found informative, but otherwise I was at sea.

Nations develop their own view of history and the lessons to be drawn therefrom.  If you agree on the history, you may disagree on the lessons.  If you agree what the lessons should be, such as that my nation is better than yours, then you might shape the history to conform to the lessons.

China remains p*ssed off at Japan over Japan's wartime atrocities, the Rape of Nanking being Exhibit A.  Japan glosses over its role in WWII, refusing to teach it in any recognizable way in its schools, I've read.  This further inflames China.

What my friend wound up telling me was that in case of a conflict between the law and his conscience, he would go with his conscience, and that stayed with me, because he was telling me the true state of his mind, and I know that he has a strong sense of the value of both the law and his conscience.

Fighting in Vietnam as a commander of small fighting naval craft,  e and his crew were fired upon from the reeds along the shore.  He could have immediately returned fire using 50 cal. machine guns aboard his swift boat.  That's what you do in a war, you shoot back at the enemy.

But behind the reeds where the fire was coming from was a village of civilians, probably civilians who had harbored Viet Cong soldiers, willingly or perhaps not.  50 cal. machine gun bullets fired towards the reeds would hit the village and likely kill old men, women, and children.  So my friend used his head and held fire.

The law of war said he could return fire, but his conscience told him that the law of war needed to have a provision in it somewhere that said "not if there are civilians behind the people you need to fire at.  Perhaps we can wait until we get a better angle, or come back another day." 

So off they sped and lived to fight another day, which is a part of war, too, a big part.

***

When I was in high school, I used to play with a friend and sometimes stay for dinner at his house.  His father was a medical doctor and the commissioner of hospitals in New York City, where I lived, on Staten Island, one of the five boroughs that comprised the city.  The others were New York (Manhattan) County, Kings (Brooklyn), Queens, and the Bronx.  Lots of people.  Lots of hospitals, many run by the city.

Well, there was a raging controversy going on when I was invited to stay for dinner this one time, and Dr. Jacobs was in the middle of it.  This was about 1957 when I was a junior in high school and my friend a senior, preparing to follow in his fathers footsteps as a doctor.

The controversy was over therapeutic abortion.  At the time, it was a crime in New York for anyone, including licensed physicians to perform abortions unless necessary to save the life or preserve the health of the mother.  This was called a therapeutic abortion and was lawful to perform. 

You can imagine that with all the millions of people in New York City that some of the pregnancies would go bad and that the mother would die unless she had an abortion.  If she couldn't afford private hospital care she'd go to a city run hospital hoping to have her life saved by having an abortion.

If she didn't go to a hospital, her choices were to self-abort and likely bleed to death, or go to a so-called 'back alley" abortionist where if she didn't bleed to death, she might become infected because of the unsanitary, unsterile conditions in which the procedure was performed, and die of blood poisoning of other infection.  Or she'd die.

If she had the means, she might travel to Tijuana, Mexico, where abortions could be procured, not always successfully.

So, the ordinary woman would often go to a city hospital.

But there are a lot of Catholics in New York City, which includes many doctors, nurses, and operating room specialists and attendants.  They refused to assist in the performance of abortions, therapeutic or otherwise.  Their religion, which they took seriously, taught that it was wrong, immoral and a sin to perform an abortion, even if it was a therapeutic abortion to preserve the health of the mother.  Or maybe, if some thought it all right to save the mother, some of th abortions were done on that pretext.  At any rate, Catholic nurses threatened to walk off the job if they were required to assist in the performance of abortions.

So Dr. Jacobs asked me, over the dinner table, what I thought the solution was.  Being sixteen or seventeen, I usually had lots of thoughts about how the world should be, but this was a serious question about a serious issue, and I didn't know the answer.  So that's what I admitted.  "I don't know."

Usually I don't like to say, "I don't know."  Lawyers are people who are supposed to be adept at finding out the answers to questions they don't know the answer to.  We preferred, before the Internet, to find the answer in a library, if only we could figure out which book it was in.

To this question, however, as to which position the Commissioner of Hospitals of the City of New York should take as between the Catholic nurses whose consciences were on the line like my friend in the swift boat, and the pregnant mothers who'd been told by their doctors that if they didn't have an abortion they'd die, I didn't have an answer.

If I'd sided with the pregnant women, I'd be disregarding the conscience of the nurses and doctors.  If I sided with them, the mothers would die.  So I was stuck.  I admitted it.

I can't remember the outcome of that dispute. To some people it could be characterized as a "labor dispute" involving the right to strike and the power of the employer to require employees to do the work they were being paid for.

To others it was a fight about the morality or immorality of abortion.

To others still, at a higher level of generality than the above, it is a question of what we should do, morally and ethically, when a conflict occurs between our law and our conscience, which often means our religion.

Is everyone free to judge for himself which laws to follow and which to disregard?

Suppose my religion requires as a sacrament that I drink wine, and it is illegal to possess or drink wine or alcohol spirits.?  That was Prohibition.

Suppose my religion requires as a sacrament that I use peyote, a hallucinogenic plant button that when burned, eaten, or smoked, induces visions of spirits said to be the Great Spirit himself, or itself.

We have general laws forbidding possession, use, or sale of a whole list of banned substances (drug laws, contraband laws), including peyote.

When there's a conflict between the general law and my conscience, are we allowed to disregard the general law and follow our conscience?

Suppose we raised that up to the level of being a ruling principle or law itself, with the power to override other laws.  We could do that. We could draft a law that said, "Notwithstanding any other law, it's okay to use peyote or other illegal drugs such as cocaine, heroin, methamphetamines, or marijuana for religious purposes."  That would solve that problem, right?

But suppose we don't enact such a law.  Is the person arrested or fired for using illegal drugs immune from prosecution because his motives were pure in violating the law because the violation was for a religious purpose?

Suppose he and his friends decided to import illegal drugs but instead of calling themselves a drug gang, called themselves the Sacred Brothers of Narcotics Importation, SaBroNI, for short. 

I think the DEA would be after them in a New York minute.

The case is Employment Division of the State of Oregon v. Smith (1982) where Smith, a drug counselor for the state, was fired for using peyote in violation of the general law despite his bona fide use of the substance as a sacrament of his Native American Church which has been using peyote since before the white man arrived on the continent.  He had tradition behind him, but lost out to White Man's Law, with Associate Justice William H. Rehnquist among those voting against Smith.

That gave rise to RFRA and Boerne ("congruent and proportional") which declared RFRA unconstitutional, and thence to RLUIPA, which was upheld this term.  I've blogged about these before if you're interested; you can Google this site using those terms.

***

What prompted the above was an article in the San Francisco Chronicle today by Wyatt Buchanan entitled "When Rights Collide:  Doctor and patient both say their liberty was violated.

Guadalupe Benitez wanted to have a baby, so she went to a fertility clinic hoping to be artificially inseminated, but her doctors refused to treat her, so she has sued them and the California Medical Association over whether doctors should have the right t refuse treatment on religious grounds.

Ms. Benitez is not married and she is a lesbian, so they refused.

A trial court ruled that the doctors could claim a religious exemption from performing the procedure on her and the case is being appealed in California.

This is the opposite fact situation of the Catholic nurses refusing to perform abortions, as here we have religious-claiming doctors, following their own conscience, refusing to artificially impregnate an unmarried, pregnant woman. 

If your view of the way the world should work, is that of the let's call it the "Ozzie & Harriet" mentality, after the stable white intact heterosexual family paradigm of the 1950s television sitcoms, then you probably don't want to see unmarried females getting pregnant, and even less if they're lesbian and living with another woman. 

What will become of this child? you might wonder. 

Probably the kid will just grow up, but I can see a lot of people arguing with that.

One person quoted in the article argued what if an Orthodox Jewish restaurant owner refuses to serve men and women who sit together?  Or a Muslim shop owner bans women who do not wear head coverings?

What if a pharmacist refuses to sell contraceptives to young women without asking them if they're married?

What if hotels and motels checked marriage licenses before allowing couples to register?

Airlines have been reluctant to publish passenger lists after crashes for fear of invading the privacy of people who are traveling together, like a married businessman and his unmarried secretary.

There's a lot that goes on in the world that is contrary to conventional morality.

Ozzie & Harriet represent conventional morality.  Married for years and having a family of growing boys, Ozzie and Harriet were not allowed to be shown in bed together, even though going to bed together is a common reason for getting married in the first place.  We were very prudish about sex in this country for a long time, and still are.

Conservative folks like to uphold conventional morality, even though conservative folks probably enjoy running around with their employees as much as liberals do.  Liberals have less of an uneasy conscience about doing so, is my guess, not having taken a poll or anything like that.

Not only do conservative folk like to uphold conventional morality, except maybe for themselves sometimes, but they insist on it for others, especially the children of others.  Conservatives like to help you raise your children according to their standards.  That's one of the nice things about conservatives, always willing to help you out like that, as long as they don't have to pay for it.  "You should do this, or that," conservatives think.

I know this because I'm part conservative myself and I know how it goes.

I try not to carry it too far, however.

Too much of a good thing you know.

That's when my MYOB (Mind Your Own Business) rule kicks in.

Suppose I'm a Catholic doctor who refuses to perform abortions.  I think I have that right not to violate my own conscience.

But suppose I'm a Catholic nurse assigned to assist a non-Catholic, non-objecting doctor who is willing to perform therapeutic, or other, abortions. 

Suppose I'm a Catholic receiving clerk working on the loading dock where the trucks deliver the supplies to the hospital.  Am I entitled to refuse to unload trucks bringing in medical equipment and medications used in the operating room where abortions are performed?  How will I know the abortion related material from the general medical supplies?

One way of looking at the world is that we have many supply chains supporting any activity we engage in.  We have supporting casts.  We have suppliers from around the world.

Where is it proper to say, my conscience will not permit me to do, or even to notice, the implications of doing this?

IBM has been selling machines used in business since the early years of the 20th century.  They manufactured tabulating machines before WWII. 

IBM had an outlet in Germany.  Hitler used IBM equipment to keep track of Jews for death camp purposes.  Some folks blame IBM for making it easier for Hitler to commit genocide.

Dock workers in America, unionized dock workers, refused to unload ships registered to South Africa in order to avoid supporting the regime during the reign of apartheid.

Investment funds, such as those controlled by universities and pension plans, such as the California Teachers and the California Public Employees, sometimes dis-invest, or refuse to invest in tobacco products or other socially repugnant corporate behavior.

We attack the supply chain to attack the conduct.

Which brings us back to the constitutional question:  When does conscience overrule law? 

This means, of course, when are we justified, legally, to do what the law prohibits.

It's against the law to kill another human being.

But suppose you are being attacked, or your spouse or child?

This is how the law of self defense developed, in answer to such questions, drawn from real life.

Do you think we should recognize a law of self-defense of conscience?

No?

Don't we do that already?

Not in every case?

Okay, in which cases should this defense be allowed?

In Employment Division v. Smith?

The Supreme Court said no.

But Congress said yes, enacting RFRA, followed, by RLUIPA.

Apparently there's something to the idea.

The woman in the artificial insemination case, incidentally, was told that although Dr. A wouldn't provide the service, Dr. B would.  But after months of preparatory treatment, when it came time, Dr. B refused.  That triggered the lawsuit.

The California Medical Association is backing the doctors.

The San Francisco-based Gay and Lesbian Medical Association, however, is one of sixteen groups which have filed briefs in support of Ms. Benitez.  Joel Ginsburg, the executive director for the SF group,  said, "If the position taken by the California Medical Association and the physicians in these cases carries the day, then we've blown a hole in civil rights protections in the state of California.

One of Benitez's lawyers, Jennifer Pizer, senior attorney for the Western regional office of the Lambda Legal Defense and Education Fund, characterized the issue this way: 

"Whatever the motive was [in refusing to provide the service], whether marital status or sexual orientation, it's an issue of whether religion gives people a free pass to ignore laws that apply to everyone."

***

Well, it looks like we've got two sides of the coin in view here, and each side is different, the way it usually is with coins.

On the front side, or obverse, we might want to give people a legal right to the self-defense of protecting their own consciences.

That, if recognized, would protect the doctors in the Benitez case from having to perform artificial insemination procedures on people they think do not deserve it because they are unmarried or lesbian or both.

This, if recognized would protect Orthodox Jewish restaurant owners who believed in separating the sexes during worship, and, under the example, in restaurants.  And the Muslim store owner who banned women not wearing scarves.  And motel owners who checked marriage certificates of guests.  And dock workers who refused to unload ships from an apartheid regime.  And the receiving clerk at the hospital who refused to unload certain trucks.

This is a problematic way to run a supply chain.

But if we made the rule the other way around, such that everyone had to cooperate in the supply chain of goods and services, IBM had to sell tabulating equipment to Hitler who was killing Jews.

Palestinians are outraged at Caterpillar Tractor for selling bulldozers to Israel which uses them to knock down houses of the families of alleged terrorists in Gaza.

We sold Surface-to-Air (SAM) missiles to the Mujaheddin to use against the Soviet occupiers, lately the Taliban, who we're fighting in Afghanistan and who harbored and trained Osama Bin Laden's Al Qaeda who attacked the World Trade Center in New York on Sept. 11, 2001.  We've had our own helicopters shot down with, it may very likely be, SAM missiles.

Supply chains can be circular as well as direct.

This is a very complicated way to run a world, don't you think?

Allowing everyone the right to have his conscience overrule the general law?

See Thomas Friedman's "The World is Flat," for an even more detailed picture of the way the world currently works.  The more level the playing field becomes ("flatter") the longer are the supply chains.

***

Maybe in the end, the final wash, we're not apt to come up with a good rule.  Or more likely, we can express a value as a rule, but it's still a value, for as a rule it must have lots of exceptions and qualifications, which is all right, as that's what we do with other deep values such as equal protection and due process of law, liberty, and the like.  We recognize a principle and argue over the application in a myriad of circumstances, allowing the boycott of slavery here but disallowing the kid on the loading dock from refusing over there.

The kid might just see things differently however, and if he gets his union behind him, we have the dockworkers strike all over again.

I think the principle, rule, or law of self-defense of conscience from the operation of the general law is one whose time has come; we just didn't call it that.

FREEDOM OF RELIGION TO TAKE DRUGS

We have all sorts of "general" laws in this country, both state and federal, with which we must all comply, regardless of our particular religious faith.  Atheists, Christian, Jews, Muslims, Buddhists, and others alike must obey the traffic laws, for example. 

We would have trouble accommodating the beliefs of a religious sect whose central tenet held it ungodly for its faithful adherents to stop for traffic signs and red lights.  Too many fatal crashes would result.

Even though such laws of general application prevented members of the Church of Traffic Signs and Red Lights from practicing their religion, effectively, the Supreme Court's Freedom of Religion jurisprudence, Free-Exercise denomination, holds that the Church, in this case must bow to the general law.

"Render unto Caesar what is Caesar's, and unto the Lord what is the Lord's."  Thus spake the famous religious leader, Jesus of Nazareth.

In the United States, churches are free to practice their various religious beliefs so long as they comply with the general law.

What is the general law?

Generally speaking, the general law is the law that applies to everyone in general, not to put too fina a point on it.  Corporation law, Civil law, the Code of Civil Procedure when litigating, the Vehicle Code, the Penal Code, the Health & Safety Code, which in California regulates narcotics, are all examples of general bodies of laws that apply equally to everybody.  These were enacted by the legislature to run an orderly, safe, society without any intent to burden anybody's religious beliefs and practices.

Even during Prohibition, the era after World War I when the "Dries" and the Women's Christian Temperance Movement succeeded in having ratified the 18th Amendment in 1919 that prohibited the manufacture, transportation and sale of alcoholic beverages, an exception was made in the enabling legislation for wine used for sacramental purposes.  Wine, which is alcohol, a drug, is used by Christians and Jews, the two major religious groups in the country at the time, at least in popular estimation, to get closer to God, essentially.

But what of other religious groups that used other mnd-altering substances to get closer to God, where there are general laws prohibiting the the manufacture, possession, and sale of their drug of choice?  Peyote, for example, which has been used by native American Indians to get closer to their Holy Spirit since before the coming to this continent of the white man. 

The drug laws of many states and the nation outlawed peyote.  Was government violating the free exercise of religion? 

Government has passed laws prohibiting all sorts of drugs, so many, in fact, that the federal statutes,
simply enact a ban list of so-called scheduled drugs by chemical or molecular content. 

It doesn't seem that Congress, in banning peyote, was intending to single out any particular religion for disfavored treatment, any more than its 55 mph federally mandated speed limit was intended to burden the religion of lead-footed Christians, Jews, or anyone else.  Both were general laws, applying generally to all who drove, and more to the point, who used peyote, both zonked out druggies and devotees of the holy spirit by members of the Church of North America, a serious church favored by many native  Americans, or Indian people.

A very interesting case arose on this when a devout native American member of the Church of North America was fired from his job with the State of Oregon as an alcohol and drug counselor when he advised his employer that he intended to continue using peyote as part of his religious ritual.  Since he was fired for good cause, he was denied unemployment benefits and sued.  The U.S. Supreme Court had to decide whether the man's constitutional right to freely exercise his religion as guaranteed in the First Amendment had been violated and it held that it had not, in a case known as Employment Division of the State of Oregon v. Smith.  A most interesting account of this case is Carolyn Long's Religious Freedom and Indian Rights, University Press of Kansas, 2000.

Guess who protested this decision the most.

Ministers and rabbis.  If laws of general applicability such as drug laws could be used to prevent Native Americans from freely exercising their religion, the fear was that soon general laws could be used to trample the right of Christians and Jews to practice theirs. 

So these big religions rallied to protect themselves by protecting this little religion and got Congress to pass a law, which called RFRA (pronounced 'Rifra") which stands for Religious Freedom Restoration Act.

It was declared unconstitutional as applied by the State of Texas in the City of Boerne v. Flores case.  In Boerne (pronounced 'Burney'), the local Catholic congregation had outgrown its church and at Sunday mass, parishioners had to stand out on the street.  So the local archbishop decided to expand the church by seeking a zoning variance and building permit from the City of Boerne to add a hall on the lot next to the church to accommodate the growing congregation.  Zoning laws are general laws, generally, and certainly here, as this zoning law was enacted long before the archbishop decided he needed to expand his local parish church.  No infringement on religion there, right?  Certainly not intentionally by the lawmakers.

But the neighbors didn't want to see the parish church expanded because this would only attract more people to the quiet neighborhood, and more traffic.  So they lobbied the city to deny the permit, which it did, prompting the archbishop to sue the city.

This went all the way up to the U.S. Supreme Court based on the Archbishop's claim that RFRA protected him from general laws which had the unintended effect of infringing on his, and his congregation's free exercise of religion, as guaranteed in the First Amendment.

The Archbishop lost, however, with the Supreme Court holding that Congress's legislative enactment, RFRA, in response to Employment Division v. Smith, was neither "congruent" nor "proportional" to the problem the ministers and rabbis presented to it as causing trouble across the land.  The statute was overbroad.  Congress had used a sledge-hammer when a tack-hammer would have better served Congress's purpose.  The Court was looking over Congress's shoulder to see what sort of evidence it had used in enacting a statute.  The Court was acting as a Super-legislature, it seems.  It seemed to be Lochnerizing all over again, even though it had said, in 1937, Carolene, that it was going out of the business of passing on the wisdom of legislative policy making. 

The Court allowed itself three exceptions however, and it appears that Boerne fell into the first.  They are that the Court will give heightened scrutiny to cases in which the claim is that textual guarantees of the Constitution are violated, such as religious freedom under the First Amendment, claims that the political process is being unfairly distorted for the advantage of one group at the expense of another, and claims that the rights of "discrete and insular" minorities are being stepped on and these groups are too insignificant politically to be able to protect themselves.  This list of three appears in what is said to be the most famous footnote in Constitutional Law history, Footnote Four of the Carolent Products case, 1937.

Well, you say, "So what, the Archbishop lost in Texas.  There are plenty of other places to build a church.  Texas is a big place."

In the City of Los Angeles recently, an expanding orthodox Jewish congregation wanted to buy a house to use for worship services in a lovely residential neighborhood, which may not have been famous for welcoming the assembly of lots of Jews, especially the bearded, black hat-and-coat, conservative crowd. 

We have zoning laws, urged the neighbors to the city council. 

We need a place near where we live, urged the Jews, because our religious laws, as old as Moses himself, who gave them, forbid us from driving cars on the Sabbath.  Something about not riding or making fire, all aspects of work, prohibited on the day of rest.  These zoning laws of general applicability prevent us from practicing freely our religion, as guaranteed in the Constitution.

So, what have we here?

Laws of general applicability, applied first to prohibit a native American belonging to the Church of North America, in Smith,  from using peyote strictly for sacramental purposes, and then to prevent the Catholic Archbishop from adding on to his parish church, in Boerne, and then, in L.A. to prevent Jews from buying and using a home in a residential neighborhood near to where they live for worship services, since they haven't been able to drive from sunset on Friday to sunset on Saturday for something like 5,765 years, but who's counting.

So now  matters are beginning to look a little serious.

And now we have a little religious group called UDV from Brazil that uses, strictly for sacramental purposes, "hoasca," a tea made from the leaves of a vine (that's where the 'V' in UDV comes from)  whose leaves they want to import into the United States.  But the active ingredient in this tea, which brings the devotees of this faith closer to God or their holy spirit, is on the federal ban list of narcotic drugs, the dreaded federal drug Schedule, a law of general applicability, not passed to stamp on anyone's particular religion, a 55 mph sort of law that legislatures pass every day somewhere without a problem.

But now there's a problem.  This group that likes to drink hoasca is claiming that its religious freedom is being stepped on in violation of its constitutional right to the free exercise of its religion.

Should the UDV church be allowed to import their sacramental tea leaves into the United States strictly for religious purposes despite the general federal ban on scheduled drugs that makes it a crime to do so?

The U.S. Court of Appeal for the 10th Circuit has held that it may.

All of which is by way of introducing a neat Findlaw article by Prof. Marci Hamilton, who not only teaches law at Yeshiva University in New York City, but is the attorney who won the Boerne case before the Supreme Court.  She knows, and describes well, the Court's religious jurisprudence, as seen in her analysis of the UDV/hoasca case, below. 

Mixed up inevitably in her legal analysis are her personal views regarding whether the 10th Circuit is usurping Congress's role as lawmaker. 

See if you can distinguish when Prof. Hamilton is giving clear-cut legal analysis of what the cases hold, and personal opinion as to what the court she's criticizing should have held.  You'll need a sharp eye, but you can do it.

http://writ.findlaw.com/hamilton/20041118.html

---- A Federal Appeals Court Says A Religious Group Can Import Illegal Drugs: The Religious Freedom Restoration Act Shows Its True Colors By MARCI HAMILTON [email protected] ---- Thursday, Nov. 18, 2004 The U.S. Court of Appeals for the Tenth Circuit recently sat en banc - that is, in a larger-than-usual panel representing the Circuit as a whole - to address the claim that the federal drug laws do not apply to a particular church.   The party adverse to the government was the O Centro Espirita Beneficiente Uniao Do Vegetal (UDV). It was secretly importing a tea-like substance called hoasca -- which it refers to as the "vine of the soul," the "vine of the dead," and the "vision vine - from Brazil to the U.S. for use in its religious ceremonies. The problem is, hoasca contains a Controlled Substances Act, Schedule I, banned drug.   Unbelievably, the Tenth Circuit ruled in favor of the UDV. Its ruling (on the likelihood of success on the merits in the context of a preliminary injunction request) purports to foreclose the government from enforcing the drug laws. That's a perversion of the Constitution's Free Exercise Clause, and it cannot be squared with the Supreme Court's free exercise jurisprudence. But it did not have to square with the Free Exercise Clause, because it was brought under the Religious Freedom Restoration Act (RFRA). Interestingly, the panel included Judge Michael McConnell - formerly a law professor highly critical of current Free Exercise doctrine and highly supportive of RFRA.   Generally, of course, we all must abide by the federal drug laws and international treaties prohibiting the importation of illegal use and international trafficking in drugs into the country. So the court's ruling may seem odd: Courts are not normally in the business of deciding whether to enforce a law or not. To the contrary, under the Constitution, they are obligated to enforce the law.   But this case was decided under RFRA. And that misguided statute, as I will explain, wrongly transforms courts into legislatures. Here, for example, the Tenth Circuit - absurdly - used RFRA as the basis to enjoin the federal government's enforcement of the drug laws.   Background on the UDV, Hoasca, and the Case Before the Court   If the reader hasn't heard of the UDV, that may be because, in the United States, it remains a very tiny religious institution.   The UDV was founded in 1963 by a Brazilian rubber-tapper who discovered that hoasca could be made from several plants indigenous to the rainforest. Hoasca, as the Tenth Circuit described it, is a "liquid, tea-like mixture."   The plants from which hoasca is made are psychotria viridis and banisteriposis caapi. As the Tenth Circuit also explained, psychotria viridis "contains dimethyltryptamine (DMT), which is listed on Schedule I of the CSA and the Convention."   The religion is a blend of Christian theology and indigenous American beliefs. In Brazil, it has approximately 8,000 members.   In 1993, one of its leaders arrived here in the United States. And as of now, there are 130 members in the United States. The UDV's ceremonies involving hoasca occur at least twice a month, and last roughly four hours. Church officials prepare the hoasca in Brazil and ship it here for the UDV's ceremonies.   The case before the Tenth Circuit arose because United States Customs Service officials seized approximately 30 gallons of hoasca in transit, and has threatened prosecution. In light of the threat - according to the Tenth Circuit's original panel opinion, issued in September 2003 -- UDV has ceased using hoasca in the United States.   After the seizure, the UDV filed suit -- asking for injunctive relief and a declaratory judgment that its practices are protected under the U.S. Constitution and the Religious Freedom Restoration Act (RFRA). But, as I will explain, it is RFRA - not the Constitution's Free Exercise Clause - that really made the difference in this case. Indeed, RFRA opened the door for the Tenth Circuit en banc panel to become a super-legislature, supposedly competent to determine federal and international drug policy.   Technically, because the subject was a preliminary injunction, what the Tenth Circuit held was that the UDV was substantially likely to succeed in its claims. But the court's analysis made clear that if presented with the issue directly, it would rule for the UDV - and thereby undo neutral federal criminal laws.   The Free Exercise Clause -and How RFRA Tries to Modify It   The Constitution's Free Exercise Clause has long been interpreted to allow neutral laws that regulate conduct - not belief -- to be applied to religious persons and institutions, along with everyone else in society. The untenable alternative would be to apply the law regulating conduct to everyone except those who are religiously motivated.  But conduct is conduct, and harm is harm.   Religious belief is sacrosanct under the Constitution. But religiously motivated conduct is not - when it violates civil law.   Thus, in the Supreme Court's opinion in Employment Div. v. Smith, Native American Church members, who used peyote, a hallucinogen, in their religious ceremonies, were held subject to the state and federal drug laws. Like everyone else, the Court concluded, they were prohibited by law from using hallucinogen - even in religious ceremonies.   The Court noted in its ruling that their remedy was to ask the legislatures - not the court - to modify the law. And indeed, they had already succeeded in some states, as the Smith decision explicitly noted. They went on to secure legislative exemptions for the sacramental use of peyote in many states and from Congress. One would have thought that that would have been the end of the story, because the Court's jurisprudence did indeed ensure religious liberty.   After Smith, though, a torrent of unwarranted criticism rained down on the Supreme Court--while accommodations for peyote were being secured. The argument was that legislatures could not be trusted to grant exemptions for religious practices. In a move that cannot be explained by logic, but only by politics, Congress, through unanimous consent in the House and a near-unanimous recorded vote in the Senate, passed the Religious Freedom Restoration Act (RFRA). In effect, RFRA gives religious entities the power to challenge the application of every law in the land - and in so doing, it runs directly contrary to the Supreme Court's Free Exercise doctrine, as embodied in Smith and other precedents.   In Boerne v. Flores, the Supreme Court struck down RFRA as applied to the states. But so far, the courts have upheld RFRA's application to federal law. They reason that a government can place whatever restraints it imposes on itself.   But they ignore how RFRA places courts into the constitutional shoes of the legislatures. RFRA appoints courts to become the primary drafters of public policy, when that is the province of legislatures. And it infringes on the Supreme Court's - and lower federal courts' -- power to interpret the Constitution by displacing the Court's own interpretation of Free Exercise Clause, and replacing it with Congress's preferred interpretation.   RFRA's Three-Part Analysis, as Applied in the UDV/Hoasca Case    Specifically, a court applying RFRA must go through a three-part analysis:   First, it must ask whether the religious institution or person has shown that the law imposes a substantial burden, which is to say that it must make the practice "effectively impracticable." That was obviously the case with the UDV and hoasca: If the church couldn't legally import the drug, it couldn't use it in its ritual.   Second, it must ask if the government has proven its law satisfies a compelling interest. Plainly, the interest in keeping illegal drugs out of the U.S. is compelling.   Third, and crucially, the court must ask whether the laws enforced are the least restrictive means the government can opt for, with respect to this particular believer.  This third step was crucial in the UDV/hoasca case.   The Key to the Tenth Circuit's Ruling:  The "Least Restrictive Means" Step   Here, the laws at issue were the Controlled Substances Act, and the United Nations Convention on Psychotropic Substances. (The Convention, which provides for the cooperation of nations in their attempts to eliminate the illicit use and trafficking in psychotropic substances, also is part of U.S. law, for the Constitution deems treaties to be part of U.S. law.)   The Tenth Circuit had to ask whether these laws were the least restrictive means the federal government could have chosen, with respect to the UDV believers.   Judge Murphy, in dissent, wisely said yes. But Judges Seymour and McConnell said no (in separate opinions, neither of which garnered the support of a majority of the court.)   Judges' Seymour and McConnell's Fallacy: Using Evidence for Legislative Exemption   In so holding, Judges Seymour and McConnell assessed the evidence from a hearing before the district court and concluded that by their lights there should be an exemption for the UDV.   Judge Seymour even suggested, shockingly, that a treaty exemption could be judge-made! She pointed out that the relevant Convention permitted signatory nations to obtain an exemption from the treaty for prohibited substances "traditionally used by certain small, clearly determined groups in magical or religious rites." She then pointed out that the United States obtained just such an exemption for the Native American Church for peyote. But she omitted a glaring truth: The United States had not done so for the UDV - as of yet. And hoasca is not peyote.   Her opinion, though, did reveal that UDV had two other options open to it. Free exercise doctrine permits exemptions in the legislatures and the Convention permits an exemption as well. So what RFRA has done is to detour religious entities from the political process where they would have to justify their need for exemption in the light of the public good into a courtroom where it is impossible for the government to gin up the sort of legislative record0--hearings, reports from experts, investigations--that could only justify a conclusion regarding whether to permit use of a Schedule I drug.   Judge McConnell's opinion (joined by Judge Tymkovich) is the quintessential example of the court as super-legislature. He rejected explicit Congressional findings regarding Schedule I drugs, like hoasca, because they cannot be "conclusive." He asserted, for instance, that "Congress's inclusion of DMT in Schedule I "should [not] control our assessment of the relative dangerousness of hoasca," because Congress had not considered hoasca by itself. But why not? Congress doubtless included DMT because it found it dangerous. And hoasca contains DMT.   McConnell also complained that "Congressional findings invariably tout the importance of the laws to which they are appended." And he criticized the particular findings Congress chose to make in this case: "If Congress or the executive branch had investigated the religious use of hoasca and had come to an informed conclusion that the health risks or possibility of diversion were sufficient to outweigh free exercise concerns in this case, that conclusion would be entitled to great weight."   It did not matter to McConnell that the findings Congress made were good enough for Congress, which is, after all, charged with making the law, and which was, deciding whether to pass a neutral drug law, not whether to grant an exemption. Nor did it matter under McConnell's RFRA analysis that the UDV could easily seek that very exemption from Congress - and submit evidence in support of that exemption at that time.   Congress, Not the Courts, Should Be the Ones to Decide on Drug Law Exemptions   There are important separation of powers reasons for why courts should not be carving out exemptions that are within the sole power of other bodies - including Congress. As Judge Murphy remarked, assessing the evidence to decide whether a given exemption should be granted is the function of the legislature --- not the court.   Judge McConnell response to Judge Murphy's argument was this: If the court were institutionally incompetent in the drug laws, "the same may be said for application of RFRA to virtually any field of regulation that may conflict with religious exercise."   McConnell seemed to see this consequence as an absurdity. But it is simply the truth.   RFRA is unconstitutional, under the separation of powers, precisely because an institutionally incompetent branch, the judiciary, has been assigned the duty of a competent branch, Congress -- in this case, the core duty to make the law.   Yet courts are in no position to make the public policy determination whether a drug can or should be permitted for some groups and not others. They are inherently institutionally incompetent to do so, as they must make decisions within the narrow confines of a particular case under only the facts presented by two parties.   No court in the country is capable of seeing the big picture that is essential in making decisions on public policy - including decisions on whether to grant exemptions from a generally applicable law, and whether they will erode the general law's effectiveness or result in harm to others. Only the legislature--with its wide-ranging fact-finding capacities and its charge to make the laws in the public good--can be trusted to do this.   Republicans, Especially, Should Oppose This Kind of Judicial Overreaching   During the last election, Republicans frequently talked about the need for judges to interpret the law, not make it. Hear, hear.   But RFRA invites judges to do just the opposite; it encourages judicial activists like McConnell to appoint themselves superlegislatures, and to second-guess what the people's representatives have done or should do. For this reason, among others, the Republican-controlled Congress should repeal RFRA - or it will continue to deputize the very kind of activism by judges that Republicans hate. It's not surprising that RFRA aligns itself with a more liberal agenda; its standard of strict scrutiny in free exercise cases involving neutral, generally applicable laws was devised by Justice William Brennan. And the need for RFRA simply cannot be proven. There are hundreds, if not thousands of legislative religious exemptions in the United States. They grant everything from an exemption to the felony murder laws for faith-healing parents who permit their children to die, to an exemption from the immunization laws for school-age children for parents who oppose immunization on religious grounds.   Whatever the wisdom of these particular exemptions, they testify to the ability of religious organizations--even small ones-- to work within the system, and to obtain exemptions from legislatures. The UDV should not have been able to invoke the courts to obtain the right to avoid the drug laws. RFRA as applied to federal law plainly violates the separation of powers, and no case illustrates this fact better than this one. Marci A. Hamilton is a Visiting Scholar at the Princeton Theological Seminary and the Paul R. Verkuil Chair in Public Law at Benjamin N. Cardozo School of Law, Yeshiva University. An archive of her columns, including those on the Catholic Church clergy abuse scandal can be found on this site. Her email is [email protected].

 

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