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Judicial Theocrats Against Religious Liberty



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In a Public Discourse essay titled “The HHS Mandate and Judicial Theocracy,” Melissa Moschella nicely explains how appalling it is that some judges—the district judge in the Hobby Lobby case, the two members of the Tenth Circuit panel who wrongly embraced the district judge’s reasoning, and the district judge in the O’Brien ruling (effectively reversed by the Eighth Circuit)—have somehow seen fit to impose on religious believers the judge’s own view on what constitutes improper complicity in immoral conduct. As Moschella puts it, this judicial imposition is

problematic because its subject matter—moral theology—does not belong in a court decision at all. By using this argument to deny that the [HHS] mandate constitutes a substantial burden on religious practice, these judges are stepping well outside their proper area of competence. They are making a decision not based on legal reasoning, but on philosophical and theological judgment.

It is true that applying the RFRA—which prohibits the federal government from substantially burdening religious practice unless there is a compelling state interest at stake and there is no-less-burdensome way of achieving that interest—requires judges to ascertain the existence of a substantial burden on sincerely held religious beliefs. In doing so, however, judges should not take it upon themselves to weigh the plausibility or centrality of a particular belief within a religion, for judges are not theologians and should not decide cases based on theological claims.

Rather, judges should take the theological content of the plaintiffs’ claim at face value, limiting their investigation to the factual aspects of RFRA’s criteria: the sincerity of the beliefs, and the genuinely religious (rather than merely philosophical) nature of those beliefs.

I’ll add two points:

1. Moschella’s position is firmly rooted in longstanding Supreme Court precedent. As the Court stated three decades ago in Thomas v. Review Board (1981), in the course of determining that an employee who was a Jehovah’s Witness “terminated his employment for religious reasons”:

The Indiana court also appears to have given significant weight to the fact that another Jehovah’s Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was “scripturally” acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill-equipped to resolve such differences in relation to the Religion Clauses. One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here, and the guarantee of free exercise is not limited to beliefs which are shared by all of the members of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation.

The narrow function of a reviewing court in this context is to determine whether there was an appropriate finding that petitioner terminated his work because of an honest conviction that such work was forbidden by his religion. [Emphasis added.]

The specific propositions that the Court sets forth are particular applications of the broader principle that, in determining whether a person engaged in an “exercise of religion” (for the purposes of the Free Exercise Clause and the federal Religious Freedom Restoration Act), the judicial function does not extend beyond determining that the person acted from a sincere religious conviction. (There are, of course, other elements that need to be satisfied to establish that the “exercise of religion” is protected.)

2. As I’ve pointed out before (see links above), the judges who think that they’re ruling that the HHS mandate doesn’t impose a substantial burden—an absurd proposition, given the monetary penalties—must really be ruling that the plaintiffs aren’t engaged in an exercise of religion. It’s telling that their reasoning is so convoluted that they can’t see straight.



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