March 25, 2014

JAMES TARANTO: Sects and Drugs: Trying, and failing, to catch Justice Scalia in a contradiction.

Whatever one may think of ObamaCare and the birth-control mandate, the latter would seem to qualify as “a valid and neutral law of general applicability.” Thus, according to Kapur, the decision should be an easy one: Hobby Lobby and Conestoga have no case. Kapur doesn’t quite come out and say it, but his observations about Scalia’s devoutness (and his son the father’s) are an innuendo meant to suggest that if Scalia sides with the plaintiffs, it will be because he favors sexually conservative Christians over hallucinogen-using minority sects.

Any such claim is baseless. The legal basis of the Hobby Lobby and Conestoga cases is entirely distinct from that of Smith, although the cases are related. In 1993, Congress responded to the Smith ruling by enacting the Religious Freedom Restoration Act, which, as Kapur writes, “says any law that ‘substantially burden[s]’ a person’s exercise of religion must demonstrate a ‘compelling governmental interest’ and employ the ‘least restrictive means’ of furthering that interest.” Kapur acknowledges that “that’s the basis under which Hobby Lobby and Conestoga Wood . . . are suing for relief from the birth control rule.”

RFRA was a response to the Smith case, and at the time, all right-thinking people thought that Smith was wrong and that minority religious practices needed protection from an overweening state. But that was because it involved a hallucinogen-using minority sect, and not the Catholic Church.

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