The stupidest sentence in the article is this:Today, there's a notation at the bottom of the article that says: "Due to an editing error, some words were omitted from one of Paul Verrilli’s quotes. They have been restored." [ADDED: The New Yorker's correction gets Verrilli's first name wrong, commenter mccullough catches.]
Solicitor General Donald Verrilli, who was defending the law, invested heavily in the argument that for-profit companies like Hobby Lobby simply do not have rights to religious expression under the First Amendment.No, he didn't! Quite aside from the fact that he got nowhere with the argument that for-profit corporations should be treated differently from other corporations, the rights in question were not under the First Amendment. They came from a federal statute called the Religious Freedom Restoration Act, which Toobin never mentions in his article!
What's "restored" is a reference to the Religious Freedom Restoration Act, exactly the omission I'd pointed out. In the text of the article, the sentence after the sentence I called the stupidest now reads:
“It seems to me that it would be such a vast expansion of what Congress must—could have thought it was doing, in 1993, when it enacted R.F.R.A.—to say that for-profit corporations can make claims for religious exemptions to any laws of general application that they want to challenge,” he said, referring to a law on religious expression that Hobby Lobby had cited.Why would that quote have fit after the "stupidest sentence," the one that refers to "rights to religious expression under the First Amendment"? RFRA is not the First Amendment. It's a statute.
And that last clause, calling RFRA "a law on religious expression" seems like a desperate attempt to connect the quote to the "stupidest sentence." RFRA was an effort to undo a Supreme Court decision — Employment Division v. Smith — which was not about religious expression but "religiously motivated conduct." The opinion in Smith explicitly distinguished religious expression from religiously motivated conduct when it narrowed the interpretation of the First Amendment's Free Exercise Clause — which is what motivated Congress to retaliate with RFRA.
So I am not buying that this was "an editing error" or that something that was originally in Toobin's text got "restored."
Toobin degraded the reputation of The New Yorker, which apparently no longer has an editing process capable of catching egregious mistakes in characterizing what is in a transcript that is right there to be seen by anyone with access to the web. The New Yorker used to seek out hard-to-find sources in what was a famous fact-checking process. We the readers trusted that. Here, it was easy to do one's own checking, and the error was beyond obvious.
Why is Toobin writing for The New Yorker? The only answer that comes to me is that the magazine is pandering to its readers, and I am insulted by the assumption that this is what we want.
UPDATE: More on the Donald/Paul screw up here.
पोस्ट्स
७५ टिप्पण्या:
New Yorker pandering? You finally got it! Unless you are of the Pauline Kael ilk ( and you aren't) one finds the New Yorker hard to swallow.
Gave up my subscription when Henrik Hertzberg (sp?) began commenting.
Every iPhone must have it's own reality distortion field. That's the only reason I can think of for liberals to be so stupid.
On any matters implicating U.S. domestic politics, The New Yorker ceased to be a credible source some years ago. Its biases are so pronounced and so pervasive as to make those comments and articles of interest only to the modern-day equivalent of Kremlin-watchers seeking to triangulate the positions of the left wing of the Democratic Party.
John Hershey's "Hiroshima" ran in The New Yorker...30,000 words.
Recently?
There was that John McPhee article on...The Structure of Non-Fiction Writing in January 2013.
An excerpt:
"Kedit (pronounced "kay-edit"), a product of the Mansfield Software Group, is the only text editor I have ever used. I have never used a word processor. Kedit did not paginate, italicize, approve of spelling, or screw around with headers, WYSIWYGs, thesauruses, dictionaries, footnotes, or Sanskrit fonts. Instead, Howard wrote programs to run with Kedit in imitation of the way I had gone about things for two and a half decades...
Structur [another text editing program] exploded my notes. It read the codes by which each note was given a destination or destinations (including the dustbin). It created and named as many new Kedit files as there were codes, and, of course, it preserved intact the original set. In my first I.B.M. computer, Structur took about four minutes to sift and separate fifty thousand words. My first computer cost five thousand dollars. I called it a five-thousand-dollar pair of scissors.
I wrote my way sequentially from Kedit file to Kedit file from the beginning to the end of the piece. Some of those files created by Structur could be quite long. So each one in turn needed sorting on its own, and sometimes fell into largish parts that needed even more sorting. In such phases, Structur would have been counterproductive. It would have multiplied the number of named files, choked the directory, and sent the writer back to the picnic table, and perhaps under it. So Howard wrote Alpha. Alpha implodes the notes it works on. It doesn't create anything new. It reads codes and then churns a file internally, organizing it in segments in the order in which they are meant to contribute to the writing.
Alpha is the principal, workhorse program I run with Kedit. Used again and again on an ever-concentrating quantity of notes, it works like nesting utensils. It sorts the whole business at the outset, and then, as I go along, it sorts chapter material and subchapter material, and it not infrequently arranges the components of a single paragraph. It has completely served many pieces on its own. When I run it now, the action is instantaneous in a way that I—born in 1931—find breathtaking. It's like a light switch. I click on "Run Alpha," and in zero seconds a window appears that says, for example:
Alpha has completed 14 codes and 1301 paragraph segments were processed. 7246 lines were read and 7914 lines were written to the sorted file.
One line is 11.7 words."
zzzzzz.....
The New Yorker is still great. I have a subscription and read it every week. I'm not ready to write it off as some of you have.
It is a treasure and it should be preserved… restored.
Due to an editing error, the extreme wittiness of my commentary yesterday was omitted.
I will now go attempt to restore the comments to their original wit.
good for you Professor. Whoever thought that "name and shame' could be applied to the New Yorker, but this is what you get when expedience gets the better of integrity.
Toobin is writing for the New Yorker because he is part of a wide and deep cohort who got top degrees at elite schools in a time of intense pressure to conform to a particular set of approved thoughts. The members of that group (and to some extent they can anoint themselves as members) are simultaneously preachers and audience. You need no choir to preach to if the audience is already indoctrinated.
They learned in school that they could say almost anything if they did it with reasonable verbal skill and adhered to the appropriate line. This pattern continued well into life itself, and especially for the elevated members of the group, became a drug and a tonic.
Their minds have become lazy since they are never truly challenged. Eventually they start saying stuff that is really really stupid and more and more people figure that out.
It happened to the President. Why not Jeff Toobin?
If you didn't stop reading after Hertzberg's epic whine about people who say "Democrat Party" you're probably a reader for life.
The New Yorker is still great. I have a subscription and read it every week. I'm not ready to write it off as some of you have.
That's OK...it took you four extra years to figure out Obama was a disgrace, you'll come around eventually.
I never read anything but the cartoons.
The Thurber essays are in Thurber books.
Too late: when the New Left takes something over, they destroy it for all time. And clearly that's what's happened with The New Yorker
good for you Professor. Whoever thought that "name and shame' could be applied to the New Yorker, but this is what you get when expedience gets the better of integrity.
"The New Yorker is still great."
Objection! Assumes facts not in evidence.
The New Yorker prints a lot of quality, excellent journalism. It really is quite good if you choose carefully.
Ignore Hersh and most of Hertzberg and all of Toobin.
Otherwise, it's solid stuff.
I remember editor David Remnick when he used to call my high school covering our football games. He started out covering local sports for the Post.
Not just pandering, potentially participating in a coordinated framing of the discussion.
I like the New Yorker, as it brings an in-depth writing about issues and topics that very few resources do outside of academic journals and often with a high quality prose (which academic journals don't seek).
Such prose can be put to ignoble ends, however, as the veneer of intellectual artistry can easily serve the purposes of propaganda.
Also, why the moderation? I understand its occasional need and am just curious about its present return.
Still great? Not so sure about that -- as your own post demonstrates, with the contrast you draw between the meticulous editing under William Shawn and the shipshod practices of today. I dropped the subscription years ago (while still keeping NYRB, consistency being a highly overrated virtue). When you link to a New Yorker piece here, it seems tendentious and predictably partisan if the topic has any connection to political issues. In its glory days, the NYer offered wonderful fiction, short stories and other pieces by the best writers around. Don't know if it still does, but if it does, I'll just have to catch those stories when the anthologies get published.
City Journal is a publication for people too intelligent for the New Yorker.
You are insulted? "The New Yorker is still great," you said. No, it was once pretty good. The Economist used to be great, too.
Move on.
"Why is Toobin writing for The New Yorker? The only answer that comes to me is that the magazine is pandering to its readers, and I am insulted by the assumption that this is what we want."
I don't get this. You're insulted that the New Yorker regards you in some way other than the way you see yourself? You seem to be taking this a little personally. Or are you speaking for the readership? Who appointed you? Or are you using the royal "we"?
I stick with the New Yorker. There are probably seven long pieces every year that are worth the subscription cost. I take it electronically. These subscriptions add up! I have the WSJ and the FT, Times of London, New Yorker, and the Spectator streaming in daily, weekly, monthly. The bills automatically appear on the credit cards. Thanks,IRS!
Toobin is a tool and a fool. Absolutely skip him.
Thanks to Althouse for finding lots of New Yorker articles I would skip or fail to open.
Michael K. Yikes, I forgot I also subscribe to City Journal which I agree is really first rate. Also First Things.
It is a treasure and it should be preserved… restored
So is the Constitution, and it too should be restored. But it is hard to see that happening with the Democratic party as left wing as it is. The New Yorker probably suffers from the same disease.
After The New Yorker became so transparently left I dropped it. Are the cartoons still any good?
the rights in question were not under the First Amendment. They came from a federal statute called the Religious Freedom Restoration Act, which Toobin never mentions in his article!
I can see how a lawyer might make this mistake, actually. As Althouse points out...
RFRA was an effort to undo a Supreme Court decision
That's the way a lot of attorneys feel about that statute. Congress is saying to the Supreme Court, you screwed up. Overrule Smith. The Supreme Court hates to admit it screwed up. So that's why we're talking RFRA instead of the free exercise clause. But it's the same damn thing, really.
Basically, what the Supreme Court did in Smith is negate the free exercise clause, so that it has no independent meaning. Religion is subsumed under free speech. You can speak, but you have no right to, say, circumcise your baby. And if there is a right to circumcise your baby, it will only fall under "symbolic" speech.
The free exercise clause was destroyed in Smith (by the conservatives, mind you!)
A lot of attorneys think Smith is bad law. And, when talking about the RFRA, they conflate that statute with the way the free exercise clause is supposed to be read (as a provision with authority independent of the free speech clause).
So, yes, technically Toobin made a mistake in omitting any mention of the RFRA. He's conflated it in his mind with the free exercise clause, the way it's supposed to be read.
It's not a major mistake, in my opinion. (Although I love Althouse's sharp knife-like thrusts into Toobin's pompous thought balloons).
We jump all over people for mistakes. But everybody makes mistakes! Employment Division v. Smith was a mistake. It would be nice if the Supreme Court, like the New Yorker, would attempt a correction.
I subscribe to the New Yorker. It always has at least one article worth reading, and the cartoons are good. They never go for cheap laughs. The lead commentary is always predictably liberal, but that makes it easy to skip.....Worth a read but the only truly great magazines in my lifetime were National Lampoon and Spy.
They're going to need a bigger shovel to scoop up the crap that Toobin puts out.
City Journal is the only magazine I subscribe to, anymore.
I save it for flights.
As you're walkin' down your path
wondering "Where shall meaning be found?"
reading Beckett, Sarte & Plath
staring mostly at the ground
You're startled one day to find
looking cautiously around,
it could be De Blasios, Hertzbergs & Toobins
all the way down.
Are the cartoons still any good?
No. They seem old fashioned and stiff.
Saint Croix expressed the real issue do very well but to cut to chase the underlying issue is if a corporation has an enumerated right under the constitution such as free speech ( Citizens United) how can it not have other enumerated rights?
Get over it Mary.
But you would def like that piece of real estate at the New Yorker-work for it Mary.
This could be your retirement gig. Think of the audience...and all the right people.
Liberals feel free to redefine words to suit them, so who knows what the heck he meant? Even he doesn't know what he meant!
It's not a major mistake, in my opinion. (Although I love Althouse's sharp knife-like thrusts into Toobin's pompous thought balloons).
I think that it subtlety changes the question a bit. The RFRA is statutory, and therefore can be overridden by later statutes (even if it was passed by a large bi-partisan majority, and the later legislation was not). The 1st Amdt. cannot. There are statutes that specifically exclude themselves from the RFRA, but, unfortunately for the government here, PPACA did not. So, since Congress knows how to exempt legislation for the RFRA, how does the Court read the fact that it did not? Arguably, that was because Congress intentionally drafted the PPACA to conform to, or be subject to, the RFRA. And, there might be some validity to that, given the assurances that some of the Blue Dog Dems needed to vote for it. An explicit RFRA exception might have been a red flag for the fence sitters. The point being that Congress cannot exempt legislation from the 1st Amdt., but can exempt legislation from the RFRA (and didn't).
Now, of course, the real question in the case is whether HHS can write regulations not mandated by the PPACA that violate RFRA (after assurances to those Blue Dog Dems that they would not implement those precise regulations).
Toobin did a similar thing last year when he wrote about abortion. In his article he mentions Carhart II, an opinion dealing with partial-birth abortion.
What does he call it? "So-called" partial-birth abortion.
The name of the federal statute at issue in Carhart II is the "Partial-Birth Abortion Ban Act of 2003."
Again, Toobin is ignoring the statute at issue in the case! He's got his own belief system, and there is no "partial-birth abortion" in his belief system. That's just something pro-lifers made up.
Toobin is often a scofflaw. I am too! He's wrapped up in his own ideology. I can do this too! Lots of attorneys feel strongly and have independent readings and arguments that fly in the face of what our authorities say.
And I think it's important for attorneys to be this way, to think independently.
On the other hand, this attitude makes Toobin suspect as a journalist. He's supposed to be documenting what other people are doing. He's not even trying to do that.
And what's really embarrassing, as far as I'm concerned, is not that Toobin made a sloppy mistake. What's embarrassing is that he can't, or won't, admit to it.
This is typical of authorities. The Casey opinion is all about the Supreme Court's unwillingness to admit a mistake. Why? Because it hurts your power, your authority, if you admit you screwed up.
So the Supreme Court, Jeffrey Toobin, Ann Althouse, all of us, prefer not to admit any mistakes.
(Now I feel the urge to go proof read my book again before Althouse skewers me, in public, with a thousand arrows!)
St. Croix, Toobin was writing about the Supreme Court, which sees its case law as authoritative and he was reporting on an oral argument which wascompletely framed on the perception of the Court's precedent being authoritative.
Your points do not relate at all to the errors and distortions indulged in by Toobin.
RFRA itself states that it sees the precedent as wrong. So what? It does nothing to mitigate how bad Toobin's piece was.
If he'd chosen to develop that subject he could have, but there's no way it makes sense to report the oral argument as if that could be a background presumption.
What I have emphasized in my Hobby Lobby posts is that Congress is responsible for all of this law, and it had the power to EXEMPT the ACA from RFRA. That's not something that would be possible if the rule of RFRA — call it "Sherbert" — was the current interpretation of Free Exercise.
Great comment Saint Croix.
The underlying issue as I see it is once the Supreme Court found in Citizens United a free speech rights ( an enumerated right) for juridical persons how can it not find another enumerated right for the same juridical person?
What I have emphasized in my Hobby Lobby posts is that Congress is responsible for all of this law, and it had the power to EXEMPT the ACA from RFRA. That's not something that would be possible if the rule of RFRA — call it "Sherbert" — was the current interpretation of Free Exercise.
That's a very good point. A statute cannot replace a constitutional right. Congress is trying to replace the free exercise clause via statute. It's embarrassing that they had to do that. The Court should be embarrassed, far more than Toobin.
So what? It does nothing to mitigate how bad Toobin's piece was.
It's bad reporting. I agree with you.
But I don't think it's bad (or a mistake) for attorneys to conflate RFRA with our free exercise clause. That's what Congress intended. It's a specific rebuke to the Supreme Court's incompetent reading of our free exercise clause, which has independent validity.
Bruce Hayden noted: The point being that Congress cannot exempt legislation from the 1st Amdt., but can exempt legislation from the RFRA (and didn't).
At this point, couldn't POTUS just draft another Executive Order usurping Congress? He seems pretty adept at that lately and seems to engender as much real opposition as Putin does. Sure there will be opprobrium, but that too shall pass.
Not snarking.
I have been enjoying the cartoons in the New Yorker for decades. But I don't care for short stories, and the political articles are all tendentious and predictable, like a middle-brow Matt Taibi. Occasionally a cultural piece is worth reading - I remember one article once upon a time about an autistic woman who had become a great livestock expert.
If we're talking about statutory interpretation, I think the clear intent of the RFRA is to overrule Smith. The Supreme Court doesn't want to admit error. The Supreme Court never wants to admit error.
But if the Supreme Court is really trying to follow the statute, they would overrule themselves.
William writes: I subscribe to the New Yorker. It always has at least one article worth reading, and the cartoons are good. They never go for cheap laughs. The lead commentary is always predictably liberal, but that makes it easy to skip.....Worth a read but the only truly great magazines in my lifetime were National Lampoon and Spy.
My wife gets it and I respect her all the less for that, intellectually. She knows that -- I'm pretty open about it -- though we rarely discuss it. She too likes the cartoons. It's sort of like Playboy: Entertainment for Mensch.
Justice Scalia has written two books on textualism. And I love textualism. Hugo Black is my favorite Justice, by far.
And yet there are at least two shining examples of Scalia's inability to read and follow laws that other people have written.
Follow the RFRA, Scalia! But to do that, he would have to admit error. And the Supreme Court is not in the error-admitting business.
Or consider the Supreme Court's outlandish and absurd opinions in regard to what a "person" is.
A corporation is a person.
A baby is not a person.
If Scalia writes another book on textualism I will throw the book at his head. Look up the two syllable words if they are giving you a hard time.
A person is a live human being!
Give'em hell Professor...tell the truth about them.
I know the subject is trashing Toobin's reputation, but I don't read the guy. I feel like a bully picking on Toobin. I like to fight up. Pick a fight with Scalia, that's the ticket.
"Toobin degraded the reputation of The New Yorker..."
HA ha ha ha ha....
wow chick so humane of you letting and accepting the wivey reading the new yorker. you are totally a big man.
William Shawn is dead. Harold Ross is deader.
Check your reading comprehension, Tits -- I didn't say I "let" her read it -- I said she does and I respect her less for it. It's liberal fantasy material.
I see. Denying women contraceptive coverage is denying people religious freedom who don't want women to have contraception. Now I understand.
Great job, Professor. What an elegant, comprehensive takedown. That you had to do it -- that you COULD do it -- fills me with exactly the same determined grieving that you expressed.
Yes, I too am still a New Yorker subscriber. Its politics have gone from ethereal to lefty to merely offensive.
I subscribe and read it the way that I listen to NPR; I want to be better-informed, on their own terms, than the liberals with whom I propose to fight. They can't tag me with any "Fox News echo chamber" insults.
Let's not let the blame end with Jeffrey Toobin. Editor David Remnick deserves a lot of blame as well for Toobin's outrages, times ten.
I know this is off topic, but.....
I'm looking at your new photo, and I'm thinking that Shouting Thomas is about to get his ass kicked.
The New Yorker's correction itself needs a correction. There is no "Paul Verrilli." Donald Verrilli, the Solicitor General, argued the case for the federal government. Paul Clement, a former Solicitor General, argued for Hobby Lobby.
A great magazine would fire Toobin and Sy Hersh. They're crap.
Is the Solicitor "Paul" Verrilli or "Donald" Verrilli?
Saint Croix:
re: a baby is a person is a human being.
I'm surprised by how many people find this to be an offensive concept. I suggested the myth of spontaneous conception mostly in jest;
People don't actually believe it, do they?
but, I firmly believe that women, and men, take comfort in its rationalization. Their demand for money, sex, ego, and convenience overwhelms, if only momentarily, their moral dignity.
It's a dangerous game, which forms the foundation of dysfunctional progress, and needs to end. Specifically, the selective or arbitrary (i.e. extrinsic) value ascribed to human life needs to end.
"Make love, not war" was popular. However, "make life, not abortion" is uncomfortable, even a burden. More human lives are murdered/aborted from conception to around birth, than from birth to death, than in any and all wars, genocides, etc. The juxtaposition of these two positions is discomforting, to say the least.
As for Scalia, he seems to take the popular position, which is, in the majority, go along to get along. It is not his place to express when and by whose will a human life acquires value. In that, there seems to be a popular consensus. I would say cowards, but I will say that I respect people who have the courage to reject a popular but ill-conceived position.
I always hated the pretentiousness and communist slant of The New Yorker.
Then I read Tiny Mummies. I was right.
It is not his place to express when and by whose will a human life acquires value.
His job is not to measure the "value" of human life. And by accepting that the unborn can be defined as sub-human, as property, he has placed a legal value on them. Or, rather, he's not valuing them at all.
I agree with Scalia that the Constitution does not say when life begins, or when people die. The Supreme Court should not dictate these things.
But he is so wrong, grievously wrong, to deny the humanity of the unborn baby.
What would happen if the Supreme Court overruled Roe v. Wade, while recognizing the humanity of the unborn child? What if the Supreme Court said, an unborn baby has a right to life?
It would mean that we can't kill a baby in the womb, right?
But equal protection also helps us reason through these issues. It helps us define what a killing is, for instance. Not substantively, but procedurally. It requires us to follow the same laws for all people.
For instance, suppose a state wants to say that life begins at conception, and all abortions are homicides.
I think the idea that a murder happens at the microscopic level seems ridiculous to a lot of people. So this will be controversial, and political, and many people (including Scalia) would say that the courts should stay out of it.
But even if we want to say that it's a murder to terminate a zygote, we have a very basic, very fundamental legal problem--this contradicts state law in regard to when people die.
You can't convict a doctor for murder when state law says (specifically) that his actions do not qualify as a homicide.
What if the state has a death statute that says that people die when their brain loses all function, and an abortion statute that says life begins at conception and all abortions are murder?
Those statutes are in conflict. Federal judges should overrule the state and order them to pick a point when people die, and apply it to all the people in the state, including the unborn.
We might still want to say these early abortions are bad, but they are not homicides, because that is defined by state and federal law. With specificity!
That's what equal protection does, that's the genius of equal protection. It's a procedural guide that helps us reason through these issues.
To St. George, it was Hersey, not Hershey, who wrote "Hiroshima."
" I subscribe to the New Yorker. It always has at least one article worth reading, and the cartoons are good. They never go for cheap laughs. "
But they're suckers for cheap sanctimony.
I used to read The New Yorker regularly — on the theory that even as a lifelong and confident conservative, I need to be regularly re-acquainted with the arguments and rationales being advanced by the best thinkers and writers of the Left. I'd been a subscriber since sometime in the early 1970s.
Alas, for at least the last seven or eight years, The New Yorker has been in a quality free-fall, and they've of course dropped every pretense of political objectivity. I cancelled my subscription to The New Yorker in roughly 2010, and now I only regret taking so long to do that.
Congratulations, Prof. Althouse, on both this post and its predecessor from yesterday, both of which are devastating. My only question is: How many more such examples will it take to convince you that your own subscription to The New Yorker has become a waste of money?
Coming late to the party & presume that no one is on this thread anymore. I agree with all that is said, Beldar winning my prize, but I, being an Inwood wiseass at heart can't help adding one more note: The editors of New Yorker are but an upscale version of the victims of those TV guys who interview the clueless about who was the First POTUS & give us all a laugh.
BTW re Paul/Donald Verrilli, how about asking the clueless if they agreed with "Milli Vanilli's" argument at the U. S. Supreme Court?
Ann: I like the new picture.
Ann,
Friends don't let friends read the New Yorker anymore.
The New Yorker is only a weak shell of its former greatness. As a kid one of the first things I would do at the library in the 60s was grab TNY.
After reading the film reviews (I loved Kael's writing even if I often disagreed with aspects of her reviews) I would look to see what else they had because they had such superb writers whose only ax-grinding seemed to be over writing and researching well.
Now it still has some decent articles but the lefty shill aspects made me stop looking for it long ago. I used to buy one every time I took a flight somewhere but I can honestly say I haven't given them my money in over 15 years.
When you water down academic standards you no longer have a pool of talent capable of executing said "famous fact-checking process".
Chuck said The New Yorker has gone "from lefty to merely offensive"
So true - and true of more journals than the New Yorker. But still it shapes opinion so needs some pushback
One of the great things about Althouse and her blog is that when I see something on Instapundit, I read a brief excerpt and immediately I can hear Althouse's voice in the writing. The bit about being insulted at the end of the quote gave it away for me, and checking the link only verified the strength of her voice.
That's one of the best reasons for coming back here again and again; it's reliable. Unlike the New Yorker anymore, apparently.
I’m not a lawyer, just an interested person so forgive me if I have misinterpreted some things, but it seems to me that contrary to what many think, I thought Employment v Smith was well in line with the Court’s thinking that goes all the way back to Reynolds and the polygamy case (which was cited in their decision) i.e. that there is a distinction between belief and the free exercise of that belief, and conduct, which can certainly be regulated especially when the regulation has a secular purpose.. Religious duty is not a defense to a criminal indictment. Smith and Black violated the terms of their drug rehab program by ingesting peyote and then tried to claim unemployment when they were fired for having committee “misconduct.” For a society to permit unfettered religious practices that clearly might have an antisocial aspect seems foolhardy. In any case wasn’t RFRA ruled unconstitutional in the City of Boerne v Texas as it applied to the states so it applies only to federal statutes.
The Court obviously has to draw a line between conduct that affects everyone and their “beliefs” that affect no one. Adams v. Commissioner is a good example of the overreach of an attempt to expand religious expression way beyond what’s reasonable. I think Hobby Lobby and Conestoga are merely attempts by a few individuals to use the power of their position to coerce their employees into adherence to their own personal religious beliefs and that’s reprehensible.
Ann Althouse said...
The New Yorker is still great. I have a subscription and read it every week. I'm not ready to write it off as some of you have.
It is a treasure and it should be preserved… restored.
What touching naïveté! How charming! More likely it'll be purged of its false consciousness and false balance and its entire contents will be of the same quality as Toobin's original version.
I thought Employment v Smith was well in line with the Court’s thinking that goes all the way back to Reynolds and the polygamy case (which was cited in their decision) i.e. that there is a distinction between belief and the free exercise of that belief, and conduct, which can certainly be regulated especially when the regulation has a secular purpose.
Scalia would agree with you!
You could certainly argue that the free exercise clause has a speech/conduct distinction. But I would respond that this "free speech" interpretation of free exercise negates the free exercise clause. Why put free exercise in the constitution if you're just going to apply basic free speech principles to every free exercise case?
On the other hand, if you are serious about free exercise, the logical problem that you run into is that there is no boundary. If you can ingest peyote, you can marry multiple women. If you can marry multiple women, you can throw babies into volcanos.
On the other, other hand, if you negate the free exercise clause entirely (which Scalia attempted to do), you get immediate pushback from our entire society, which passes a Religious Freedom Restoration Act.
Religious duty is not a defense to a criminal indictment.
Of course it is. This is why religious people get out of going to war. There is a whole history of granting people religious exemptions from secular laws. Churches don't have to pay taxes, for instance.
For a society to permit unfettered religious practices that clearly might have an antisocial aspect seems foolhardy.
Obama would agree with you! Get in line, Catholics, your anti-birth control mentality has an antisocial aspect. Obey your secular master!
Not surprisingly Roman Catholics have a different idea about who is being "antisocial."
And liberals should note that the Supreme Court's destruction of the free exercise clause really hurts minority religions. Scalia lives in a country that will protect Roman Catholics. But minority religions get the shaft.
And I haven't even mentioned the establishment clause.
I think the religious clauses are, by far, the biggest minefield in constitutional law. Abortion is pie compared to your average religion case. I have no legal solutions to offer. The best I could do is an ad hoc, pro-religion bias. "I know it when I see it."
Establishment should focus on religious coercion, and free exercise should focus on religious liberty. Other than that, I got nothing.
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