Miscellany, 6/19/21

“The ‘Friends’ reunion we just had looked weird, because if you even suggested a show today about six people all of whom were straight and white, the network would laugh you out of the room and then cancel you on Twitter. And yet there is a recurrent theme on the far left that things have never been worse.”

The comedian Kevin Hart had recently told the New York Times, “You’re witnessing white power and white privilege at an all-time high.” Mr. Maher: “This is one of the big problems with wokeness, that what you say doesn’t have to make sense or jibe with the facts, or ever be challenged, lest the challenge itself be conflated with racism.”

He added: “Saying white power and privilege is at an all-time high is just ridiculous. Higher than a century ago, the year of the Tulsa race massacre? Higher than when the KKK rode unchecked and Jim Crow unchallenged?” …

Bill Maher, quoted by Peggy Noonan (Bill Maher Diagnoses Liberal ‘Progressophobia’ – WSJ)

In essence, [Employment Division v.] Smith demoted the Free Exercise Clause of the First Amendment to a glorified nondiscrimination doctrine. Rather than granting Americans an affirmative right to practice their religion absent compelling governmental reasons to restrict that practice, the Free Exercise Clause becomes almost entirely defensive—impotent against government encroachment absent evidence of targeted attack or unequal treatment.

David French, Four Things You Need to Know After a Huge Day at SCOTUS

The Obamacare battle created an unwritten Roberts rule. The fight against Obamacare has never been the GOP’s finest hour. The party hated the law yet couldn’t repeal the law, even when it controlled the presidency, House, and Senate. It hated the law, yet it couldn’t agree on a replacement for the law. There was never a realistic plan. It’s over, and Obama won.

But I’d also add that the Obamacare trilogy has not represented the Supreme Court’s finest hour …

[I]f you step back and look at the entire trilogy, the contortions … tell me that something was going on, that an unwritten rule might be in play. Remember that Justice Roberts always has one eye on the institutional credibility of the Supreme Court. Overturning an immense piece of social legislation passed by a filibuster-proof legislative majority would create a cultural and political convulsion. Roberts doesn’t want a convulsive court.

So what’s Roberts’s unwritten rule? Perhaps it’s something like this: When the elected branches of government enact truly significant social reforms, opponents should focus on winning elections more than winning cases. Any other approach degrades the cultural and political capital of the court.

David French, Four Things You Need to Know After a Huge Day at SCOTUS

Antifa did it. And it was totally peaceful. And we were expressing our righteous and justified indignation at the Democratic vote steal. And Portland was worse. And the FBI entrapped us.

David Frum, H/T Andrew Sullivan

Discretion to grant exceptions makes a law less than generally applicable, even if no exception has ever been granted, because discretion creates the potential for discrimination. Some lower courts have said that, but this is the first time in the Supreme Court. The Court has long invalidated standardless discretion in free speech cases, and the same rule should apply to free exercise, but they had never said that before.

There is no compelling interest in protecting same-sex couples here, because they are fully served in Philadelphia. And the liberals joined that. This passage clearly implies that the fact that gays are angry and offended by the continued existence of CSS does not give rise to a compelling interest. Here too, they had repeatedly so held in free speech cases, and the same rule should apply to free exercise, but whether it does has been disputed.

Douglas Laycock, via National Review, on Fulton v. City of Philadelphia (emphasis added).

In recognizing the Church’s role in providing moral leadership, we acknowledge and accept the tension that comes with being in disagreement with the Church in some areas. We recognize that no political party is perfectly in accord with all aspects of Church doctrine. This fact speaks to the secular nature of American democracy, not the devotion of our democratically elected leaders. Yet we believe we can speak to the fundamental issues that unite us as Catholics and lend our voices to changing the political debate – a debate that often fails to reflect and encompass the depth and complexity of these issues.

We believe the separation of church and state allows for our faith to inform our public duties and best serve our constituents.

Excerpt from Statement of Principles by nearly 60 Catholic Democrats in the U.S. House of Representatives. The occasion of the statement was the reported progress of the U.S. Bishops’ Conference toward denying communion to politicians who support legal abortion, with our current President serving as Exhibit A.

But I can’t find anything objectionable in this excerpt — and I note that the same sort of logic about "the depth and complexity of issues" gives Catholic neocons clear consciences about opposing the Church on capital punishment and economic policy that seems contrary to Catholic Social Teaching.

(By the way: one signer was Congressman Frank Mrvan, who in the Indiana legislature was foremost among pro-life Democrats.)

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Obama’s statist “religious freedom”

This, from Heritage Foundation’s Dominique Ludvigson via the Wall Street Journal, fleshes out what I mean when I call Obama’s insouciance on religious freedom “statist”:

Religious institutions and individuals should not have to sue the government to preserve the freedom to define their own missions. But they’re left with little choice in the brave new world unleashed by the national health-care law.

The HHS mandate breaks with our best traditions of recognizing the free exercise of religion as a public good and broadly accommodating religious practice and expression. It sees religion as “in the way” and interprets religious freedom as narrowly as possible – as freedom for worship and religious exercise within the walls of a church or only among its members.

The requirement also commandeers and marginalizes some of the very institutions of civil society that help preserve limited government.It’s the symptom of a broader disease – the Obama administration’s belief that government has unlimited power to curb freedom at will. Religious liberty is just the first casualty of that unchecked power.

Please remember that I’m pretty sparing in my criticisms of Obama and don’t just emote for or against this.

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Some succinct standing advice on recurring themes.

Breaching the Wall

John Garvey, president of the Catholic University of America, a former dean of Boston College Law School and co-author of “Religion and the Constitution,” had an excellent op-ed at the Washington Post Friday: For the government, what counts as Catholic?

He likens the HHS employer mandate for contraception, sterilization and abortifacient coverage to “compelling Jehovah’s Witnesses to salute the flag, or Quakers to fight, or Jews to eat pork.” But then he shifts to separation of church and state.

Or so he says he’s shifting. I’m not convinced that freedom from compulsion to act against one’s faith is really a different topic than separation of Church and state, but let’s move on.

What idiot ever started the idea that only the Church can breach the “wall of separation”? Au contraire, mon frère. As a matter of law, only the government can breach it. Maybe the Church can do things that are provocatively political, or can violate the “spirit” of separation, but the limits of the Constitution are, fer cryin’ out loud, limits on government. The Constitution is, first and foremost, so much the charter of our federal system of  government that there was considerable debate about the need for a Bill of Rights to define government’s relationship to individuals and what we today call “mediating structures.”

But the current Administration is tacitly pushing the statist spin on separation again and again and again.

There’s an analogy to the Affordable Care Act’s individual mandate, where not engaging in commerce by not buying insurance is re-cast as commerce within the power of Congress to regulate. Here, it’s rather the opposite: activities that everyone has always thought religious (not that atheists can’t do the same things, of course) are insufficiently religious for exemption from government’s heavy hand.

This invasive approach to religious institutions is, I am afraid, becoming all too common. Recently, in Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission , the Supreme Court considered whether the government could regulate the firing of a religion teacher. The teacher, who had filed a disability claim, was fired for suing the Lutheran grade school rather than settling her claim out of court. The commission and the solicitor general argued that the government need not give any special deference to employee relations at religious organizations. A unanimous court found this view “remarkable” and the government’s action unconstitutional.

In two other recent cases, the National Labor Relations Board’s regional directors have held that Manhattan College in Riverdale, N.Y., and St. Xavier University in Chicago are not Catholic schools for purposes of exemption from the National Labor Relations Act, which regulates collective bargaining. The cases stressed that the colleges do not require students to attend Mass and do not engage in “indoctrination” or “proselytizing.” Rather, they observe norms of academic freedom. They also hire non-Catholic faculty, and their boards of trustees are dominated by lay people.

Notice the similarity to HHS’s view of what counts as Catholic. A “real” Catholic college would be inward-looking. It would inculcate religious values and censor contrary views. It would hire Catholics and not other people. Its board would be dominated by clergy. It would admit Catholic students but not others.

There is a pattern to these cases. The government has been eager to regulate the behavior of churches in ways more to its liking. It does this by defining religion down, so that only the most rigid and separatist groups are exempt. The rest are, for constitutional purposes, no different from the Jaycees or the Elks Club. We might say that the wall of separation is intact, but the government has made it so small that it encloses nothing more than a flower bed.

Thank you, President Garvey.

I’m starting to entertain the thought that a litmus test for bad guys versus good guys is that the former want to limit religion by arbitrary state redefinition, the latter to limit government to the terms of the Constitution.

I’ve been concerned with religious freedom pretty keenly since well before I set foot in law school, and I know that this issue is one where, whatever his other defects, Romney stands in stark contrast to Obama and his administration. “We’re all Catholics now.”

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Standing advice on enduring themes.