Tuesday, November 26, 2013

Leiter: The rule of law applies to all, even religious believers | Al Jazeera America

The Holy SeeThe Supreme Court has agreed to decide if Catholic owners of incorporated businesses can decide not to provide legally mandated contraceptive coverage if the owners object to contraception - even though nobody is making them (the owners) use them  Just writing the check is a burden on their free exercise of religion, is the argument. The Religious Freedom Restoration Act stands as a plausible source of support for them if the Court concludes the contraceptive coverage mandate is a "substantial burden" on believers in Pope Paul VI's ill-conceived 1968 decree banning artificial birth control.  - GWC

The rule of law applies to all, even religious believers | Al Jazeera America:
by Brian Leiter - Karl Llewellyn Professor at University of Chicago Law School
Just societies enact laws to promote the general welfare. Some people, invariably, refuse to comply with those laws, and they face sanctions in accordance with them.In the United States, however, we have institutionalized a right of noncompliance to the law, to the detriment of society as a whole. Its latest outrageous expression is the attempt by Roman Catholic businesses to avoid contraceptive coverage as part of the Affordable Care Act.America is a religious country, to be sure, but it is also unique among democratic societies for the extent to which it grants religious believers special exemptions from complying with the laws that apply to the rest of us. In 1990, in Employment Division v. Smith, the U.S. Supreme Court, in an opinion by Justice Antonin Scalia, a conservative, tried to put a stop to this legal inequity, noting that "the right of free exercise (of religion) does not relieve an individual of the obligation to comply with a 'valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).'" At issue was denial of unemployment benefits to Alfred Smith, an Oregon drug-rehabilitation counselor, after he was fired, but for cause: He had lost his job because he had tested positive for use of an illegal narcotic, but one required by the rituals of the Native American religion to which he subscribed. The court concluded that the state did not have to carve out exceptions to a law regulating illegal narcotics to accommodate religious believers.
 "For several decades now, sectarian religious believers in the United States have sought and often received special treatment — a "free pass" for breaking laws they do not like. To be sure, the religious objectors claim a “conscientious” objection to the laws. But conscience is not proprietary to religious believers, and most conscientious objectors to laws either bite their lip and comply or face the consequences. I have no doubt that the vast majority of religious objectors to the Affordable Care Act will, if forced to do so, "bite their lip" and comply with the law that everyone else complies with. As things stand, however, religious believers recognize that our laws may give them a free pass if they can claim a religious objection to compliance and can convince a court to recognize it. They thereby have a perverse incentive to push for exemptions. The United States is not a theocracy. Everyone, even religious believers, should be required to comply with the law."

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