ACLU IN NEVADA

At Southern Appeal, Steve is upset that the ACLU is considering challenging an exemption provision similar to the one that the California Supreme Court looked at in the Catholic Charities case. Given the paucity of information in the news article he refers to, I'm not quite sure what the ACLU's challenge would be. If courts are going to continue in a Smith vein and relay Scalia's message to religious groups that they should petition the state legislature for exemptions from generally applicable laws, then the realm within which those exemptions are permitted by the courts is significant. The devil is in the details, of course.

I am curious how my conservative friends defend their criticisms of Smith, though, if not on moral or policy grounds. My basic understanding of Smith is that Scalia was primarily attempting to restore the founding era "secular regulation rule," which he thought had been abandoned by a Court overly enamoured with its own ability to secure amorphous rights to ignore generally applicable laws. I realize that there are lots of fun ways to "distinguish" Smith -- it should only apply to individuals, not groups; it should only apply to criminal laws, etc. -- and the best approach to the question will delve into such details, but the search for such ways of narrowing Smith is not informed by a dispassionate understanding of original intent, plain meaning, or a general theory of judicial restraint. Instead, the broad perspective informing such an investigation is partly a moral one, and it draws sustenance from such thoroughly modern cases as West Virginia v. Barnette and Sherbert v. Verner. I'm fine with that, but it seems to me that you need to throw the conservative modalities of constitutional interpretation out the window, or, at the very least, you need to admit that they are by no means your starting point for the analysis. The starting point is the outcome: Catholic organizations shouldn't have to pay for employee health care that they consider immoral. I'm fine with a result-oriented approach, of course -- and, more fundamentally, I don't know enough of the conservative literature on free exercise to make an informed judgment on the interpretive issues at stake.

So, I'm curious. How can conservatives defend their attack on Smith and retain their general approaches to constitutional interpretation? Why should we agree that Catholics have something called a "free exercise" right to refuse to pay for employee health plans that include contraception?

PS: Just skimmed Michael McConnell's 1990 Harvard Law Review article on the history of the free exercise clause. It seems to me that his argument illustrates a common problem with any original intent approach: it is indeed plausible to form sentences that combine "original intent" and "judicially enforced, constitutionally mandated free exercise exemptions," but only if you're willing to telescope out to a very broad view of the meaning of original intent itself. A consistent application of such a broad view of original intent would not provide the kind of restrictions on judicial options that conservatives seem to be looking for when they defend original intent; the choice of level of abstraction leaves a great deal up to the individual judge. So other considerations are likely to come into play, both in the choice of levels of abstraction and in the attempts to defend results in any given case.