So says legal scholar Garrett Epps in The Atlantic. Alarmed by the Supreme Court’s recent stay in the Little Sisters of the Poor and Hobby Lobby cases, Mr. Epps actually writes this:
Taken together, these two cases aren’t claims for religious exemption. They are more like an ordinance of secession—a statement that religious bodies, and people, and even commercial businesses, no longer belong to society if they decide they’d rather not. The idea depends on an assumption that government itself is sinful, and presumptively illegitimate. If courts follow this notion, they risk making it impossible to have an effective government at all. And ineffective or weak government, as Peter Shane explained here a few weeks ago, was no part of the Founders’ vision for America.
I’m wondering which “Founders” he’s referring to. Surely not the same Founders that actually wrote the Free Exercise Clause — an explicit limit on federal power — as the first liberty in the Bill of Rights.
Government itself is sinful? Both the Little Sisters of the Poor and Hobby Lobby are utilizing formal federal judicial processes to vindicate their rights — in other words, employing the governmental system of checks and balances to vindicate their rights.
Ordinance of secession? On what planet does the use of federal law (RFRA) or the federal Constitution to restrict the application of a federal regulation constitute “secession?”
But of course the secession theme isn’t really based on legal analysis. It’s just red meat for the leftist masses who are literally incapable of discerning a difference in the governmental interests in, say, prohibiting racial discrimination and the governmental interests in making another person pay for an abortion pill. And since every battle with Christian conservatives is a replay of the march in Selma, here comes the race analogy:
In Hobby Lobby in particular, the government has a powerful interest in making sure that its comprehensive insurance scheme provides uniform opportunities to all employees in commerce. That interest can sometimes overcome even the most sincere religious objection. In 1964, many people had sincere religious beliefs that African Americans and whites should not mix in restaurants, stores, and hotels—that this violated the words of Acts 17:26 that God had fixed boundaries for the nations of man and expected them to remain within them. (There are sincere believers of this idea even today within the so-called “British Israel” and “Christian Identity” sects.)
News flash: Not all governmental interests are equally compelling, and challenging one regulation is not a challenge to all, nor is it a challenge to the concept of government itself. This is of course elementary, Day One of law school stuff — and Mr. Epps knows it.
As with the vast majority of cases in which rights are asserted as a defense to a government action, a balancing test is applied. What is the strength of the governmental interest versus the importance of the asserted right? Sometimes the governmental interest is very strong — like when it prohibits racial discrimination in public establishments or prevents the publication of sailing times for ships at war — and sometimes it is extraordinarily weak, like when the government creates (out of whole cloth) an obligation to distribute a commercially available, inexpensive, controversial product for free. Raising a religious-liberty objection to this brand-new regulatory initiative presents zero threat to our system of government. Indeed, our system of government enables and empowers exactly these kinds of challenges.
Mr. Epps has the stakes exactly backwards. If the Little Sisters of the Poor and Hobby Lobby don’t prevail, then that will change the relationship between citizen and state. Where does the mandatory provision of abortion pills fit within the “Founders’ vision of America?”