ON COURT ACTION AND LEGISLATIVE ACTION

I've read with interest the negative reaction to the California Supreme Court's Catholic Charities case. One argument has been repeated several times and is worth some thought. Shawn McComber writes in the American Spectator (via Southern Appeal) that the "court ruled that Catholic Charities was not a religious organization because it hired non-Catholics and offered such 'secular services' as counseling, low-income housing and immigration services to people, regardless of their faith." Not exactly. Instead, what the court did was note that the organization didn't fit the statutory definition of "religious organization" -- and, more importantly, that Catholic Charities itself admitted that point. Catholic Charities asked the courts to strike down the statutory definition; the court declined to do so, in part, it seems, precisely because it didn't want to have to decide what counts as a religious organization as such -- which is precisely what critics of the ruling are criticizing the court for having done. Figure that one out.

Professor Rick Garnett writes an eloquent attack on the opinion here (and Professor Bainbridge quotes from it approvingly, I think, here). Here is a key paragraph:

Given recent decisions and developments, the court's ruling in Catholic Charities of Sacramento, Inc., v. Superior Court of Sacramento County comes as no surprise. It is no less regrettable, though, and should be no less troubling, for being predictable. Indeed, Professor Douglas Laycock — one of the nation's leading constitutional-law scholars — has observed that the decision is a "shocking interference with internal church affairs." It presents, in the words of Justice Janice Rogers Brown, the court's lone dissenter, "an intentional, purposeful intrusion into a religious organization's expression of its religious tenets and sense of mission." The Catholic Charities case is not just another effort to navigate what Justice Brown called the "whimsical and somewhat erratic path" of religious-freedom jurisprudence. Rather, it involves an effort by government to define — and, thereby, to confine — the nature and scope of religious belief, obligation, and faith. (emphasis added)

Now I'm not really sure how "the decision" itself is an interference in internal church affairs, since the root of the problem here is the statutory definition of a "religious organization." The court didn't create the definition; it just upheld it. One of the purposes of the approach to free exercise embodied in Smith was to fob the question of exemptions off on the legislature; here, it seems to me, the CA court has taken that purpose seriously and refused to create an exemption to an otherwise valid law, and one that the court argues serves a compelling interest at any rate. The creation of an exemption could be called "activist" -- and in other contexts would -- for interfering with a statutory scheme and striking down a law written by democratically accountable legislatures and replacing it with a rule created by elitist folks in black robes. Indeed, the rule that folks like Prof. Garnett would like to see the courts announce here is a reinvigoration of a Warren-court era rule that rests on judicial power to strike down the actions of democratically accountable legislators.

Now you could say that judge Brown just wants to protect "rights." That's fine. Unfortunately, there are unavoidable moral judgments to be made about what rights are actually protected under "free exercise," and what level of government should be relied upon to protect them. Scalia's Smith opinion takes one position on these issues, judge Brown's Catholic Charities dissent takes another position. You're not going to help future judges decide between these approaches by telling them that they should look at text, the intent of the framers, plain meaning, or any of the other mechanical approaches that conservatives advance in order to criticize judicial opinions that they don't like. It's just not going to work, folks. There's a tough call to be made here, and it's an unavoidably moral call.

MORE: Genuflections tells Catholic Charities to complain to the legislature, vote Republicans because they don't want to force employers to provide health care, but also to scare off non-catholic employees by hinting that non-Catholics won't be welcome and by increasing religious symbols in the work environment. Sebastian Holsclaw calls the court's reasoning "silly" and then blames "leftists" for what he predicts will be a catholic pull back from charity work in California. Behold the political danger of Smith, at least when large religious groups ask for exemptions. Still, just as Scalia told the peyote users in Smith: if you want an exemption, go back to Sacramento, folks. Recall that Scalia is quite hard-hearted about the effects on minority religious groups:

It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs. (full text of the opinion here)