"The plaintiffs here are not asking the school to change its curriculum. They’re just saying, ‘Look, we want out.’ Why isn’t that feasible? What is the big deal about allowing them to opt out of this?"

Said Justice Alito, quoted in "Justices Seem Set to Allow Opt-Outs From L.G.B.T.Q. Stories in Schools/In a lively and sometimes heated argument, the Supreme Court’s conservative majority appeared poised to rule for parents with religious objections to storybooks with gay and transgender characters" (NYT).

Here's the transcript of the oral argument.

"In the end, the [School] District’s case hinges on the need to generate conflict between an individual’s rights under the Free Exercise and Free Speech Clauses and its own Establishment Clause duties..."

"... and then develop some explanation why one of these Clauses in the First Amendment should '"trum[p]"' the other two. But the project falters badly. Not only does the District fail to offer a sound reason to prefer one constitutional guarantee over another. It cannot even show that they are at odds. In truth, there is no conflict between the constitutional commands before us. There is only the 'mere shadow' of a conflict, a false choice premised on a misconstruction of the Establishment Clause. And in no world may a government entity’s concerns about phantom constitutional violations justify actual violations of an individual’s First Amendment rights. Respect for religious expressions is indispensable to life in a free and diverse Republic—whether those expressions take place in a sanctuary or on a [football] field, and whether they manifest through the spoken word or a bowed head. Here, a government entity sought to punish an individual for engaging in a brief, quiet, personal religious observance doubly protected by the Free Exercise and Free Speech Clauses of the First Amendment. And the only meaningful justification the government offered for its reprisal rested on a mistaken view that it had a duty to ferret out and suppress religious observances even as it allows comparable secular speech. The Constitution neither mandates nor tolerates that kind of discrimination."

From Kennedy v. Bremerton School District, announced just now, written by Justice Gorsuch and joined by the 5 Justices most likely to join Gorsuch.

The Supreme Court issues an important freedom of religion case: "Maine’s 'nonsectarian' requirement for otherwise generally available tuition assistance payments violates the Free Exercise Clause."

Here's the opinion, Carson v. Makin.

Chief Justice Roberts writes the opinion, joined by Thomas, Alito, Gorsuch, Kavanaugh, and Barrett, and Breyer dissents, joined by Kagan and (in part) Sotomayor. Sotomayor has a separate dissenting opinion.

This is what I expected based on the Court's recent history with cases like this, but I'm eager to read it and will update this post.

ADDED: From the majority opinion:

Maine has enacted a program of tuition assistance for parents who live in school districts that do not operate a secondary school of their own. Under the program, parents designate the secondary school they would like their child to attend—public or private—and the school district transmits payments to that school to help defray the costs of tuition. Most private schools are eligible to receive the payments, so long as they are “nonsectarian.” The question presented is whether this restriction violates the Free Exercise Clause of the First Amendment.

"Supreme Court says Montana program aiding private schools must be open to religious schools."

WaPo reports.

Chief Justice John G. Roberts Jr., writing for a conservative majority in the 5 to 4 ruling, said the Montana Supreme Court was wrong to strike down the program because of a provision in the state constitution that forbids public funds from going to religious institutions. The U.S. Constitution’s protection of religious freedom prevails, he said.

“A state need not subsidize private education,” Roberts wrote. “But once a state decides to do so, it cannot disqualify some private schools solely because they are religious.”

AND: Here's the text of the opinion. I'm going to read it and give you more detail. I've taken out a statement I had up for a few minutes, criticizing the WaPo headline in a way that I no longer think was right.

ADDED: The state legislature enacted a tax credit of up to $150 for donations to scholarship programs, which could fund tuition for kids attending private schools. The state Department of Revenue interpreted the statute — which referred to "qualified education providers" — to exclude religious schools. That seems to be in line with the state constitution's prohibition of financial aid to "any church, school, academy, seminary, college, university, or other literary or scientific institution, controlled in whole or in part by any church, sect, or denomination," but the Free Exercise Clause of the U.S. Constitution requires strict scrutiny of discrimination against religion.

Under Supreme Court precedent, there's no Establishment Clause problem in including religious schools. The aid is defined in a religion-neutral manner, and it's only the parents' choice that determines that the money goes to a religious school. The hard question is whether the state court could use the state's constitutional "no aid" provision to strike down what the legislature did. The state's separation of church and state is especially staunch — stronger than the federal Establishment Clause — but can that be the "compelling state interest" that justifies discrimination against religion? The majority's answer is no, because the Free Exercise Clause is federal law.

But the state court took the benefit of the program away from everyone. So doesn't that achieve nondiscrimination? The dissenters say it does, but the majority says the legislature chose this program, and the state court's first step was a discrimination against religion. There was a second step, depriving everyone of the program, but that step was founded on the discrimination the court thought the state constitution required.

"The law Pence signed — a Religious Freedom Restoration Act (RFRA) — has been around since President Bill Clinton approved a federal version of the law in 1993."

"Traditionally, RFRAs were used to protect religious minorities, including the Amish and Muslims. But as conservatives have lost battles over LGBTQ rights (particularly same-sex marriage), they have turned to religious freedom laws in an attempt to carve out methods to continue allowing discrimination."

From a Vox article titled "Mike Pence for Donald Trump's vice president? It's an extra awful choice for LGBTQ rights" that at least tries to reconcile the recent denouncement of RFRAs with the 1990s bipartisan support for religious freedom exemptions.

It's funny to say "Traditionally" when you're talking about legislation that's only been around for a couple decades, and if you make a law like that it has to treat all religious the same. You can't favor one religion over another! You can't pick and choose and be sentimental about the Amish and politically correct about the Muslims and then turn around and reject the principle of exemptions when they're demanded by groups that you like seeing get pushed around.

But there is some reason to judge politicians by what they think they are doing — by their motivations — and not by what the legislation they produce will actually do when its language is applied in real cases and constrained by constitutional law. Back in the 90s, people weren't talking about using religion as a basis for avoiding complying with anti-discrimination laws. And last year, in Indiana, they were.

I'm interested in seeing how these attacks on Mike Pence will play out. People don't seem to do very well at understanding RFRA and the constitutional law that surrounds it. But Bill Clinton is such a central character. As I wrote last year:

Look at how pleased Bill Clinton was to sign what was then perceived as important civil rights legislation.

And the late Justice Scalia — whose empty seat figures so prominently in the election — is a central character. He wrote the constitutional law opinion that rejected religious exemptions and triggered the legislative response that was RFRA. 

"For liberals, the question now is how to deal with the losers in the culture wars. That’s mostly a question of tactics."

Writes Mark Tushnet, in part of a 6-point plan for "abandoning defensive-crouch liberalism" (energized, prematurely, by the 4-4 balance on the Supreme Court):

The culture wars are over; they lost, we won. Remember, they were the ones who characterized constitutional disputes as culture wars (see Justice Scalia in Romer v. Evans, and the Wikipedia entry for culture wars, which describes conservative activists, not liberals, using the term.)

Professor Tushnet doesn't bother to put in links. I found the Wikipedia entry for "culture wars," and it traced the term to "Culture Wars: The Struggle to Define America" by the sociologist James Davison Hunter. That was published in 1991, 5 years before Scalia, in Romer, wrote of the "Kulturkampf" ("culture war").

Does the war metaphor matter? Is there some idea that whoever called it a "war" first is — after the war ends — properly treated like a conquered enemy?

"Gov. Nathan Deal said he will veto the 'religious liberty' bill that triggered a wave of criticism from gay rights groups and business leaders..."

He said it "doesn’t reflect the character of our state or the character of its people" and: "Their efforts to purge this bill of any possibility that it would allow or encourage discrimination illustrates how difficult it is to legislate something that is best left to the broad protections of the First Amendment...."

But the First Amendment doesn't give "broad protections" against neutral generally applicable laws that burden religion. The idea of exempting for those with religious beliefs from following the law that applies to everyone else comes not from the First Amendment, but from statutes like the one Bill Clinton signed in 1993 and the one Nathan Deal is vetoing today.

"Donald Trump's reprehensible call to bar Muslim immigrants from entering the United States tracks an exam question I’ve been giving my immigration law students since Sept. 11."

"Would such a proposal be constitutional? The answer is not what you might think..."

Unless you've read all the many other op-eds dotted about mainstream media, but this one, by Temple lawprof Peter J. Spiro, caught my eye because I need to write a couple of law school exams and I have never — in 30+ years — reused a question. I've never even taken the same question and tweaked it with the aim of convincing myself I wasn't reusing it.

Anyway. Professor Spiro does a fine job of explaining the Supreme Court's "extreme deference" to Congress and the President under what's known as the "plenary power" doctrine:

It dates back to the 1889 decision in the Chinese Exclusion case, in which the court upheld the exclusion of Chinese laborers based on their nationality... More recent decisions have upheld discrimination against immigrants based on gender and illegitimacy that would never have survived equal protection scrutiny in the domestic context. Likewise, courts have rejected the assertion of First Amendment free speech protections by noncitizens. Nor has the Supreme Court ever struck down an immigration classification, even ones based on race. As late as 1965, a federal appeals court upheld a measure that counted a Brazilian citizen of Japanese descent as Asian for the purposes of immigration quotas. In the context of noncitizens seeking initial entry into the United States, due process protections don’t apply, either....

The courts have justified this constitutional exceptionalism on the grounds that immigration law implicates foreign relations and national security — even in the absence of a specific, plausible foreign policy rationale. The 1977 Fiallo case, for instance, involved a father seeking the admission of his out-of-wedlock son from the French West Indies — hardly the stuff of national interest.

Indeed, contrary to the conventional understanding, President Trump could implement the scheme on his own, without Congress’s approval. The Immigration and Nationality Act gives the president the authority to suspend the entry of “any class of aliens” on his finding that their entry would be “detrimental to the interests of the United States.”

Spiro goes on to say that the Constitution has meaning beyond what the courts are willing to detect and enforce. As he puts it: "Clear popular consensus can establish constitutional norms, with or without the courts."

Mr. Trump’s plan has triggered an uproar across the partisan divide. Perhaps a religion-based immigration bar may be consistent with court-made doctrine. But it doesn’t reflect our deeper, broadly assimilated understandings of the Constitution.

But is there clear popular consensus? I guess we should at least wait for the next round of polls, because Trump is immensely popular, at least with a sizable enough sector of Americans to wreck the clarity of the picture of popular consensus. Politicians and commentators are trying to lead a chorus of shaming, but Trump may be saying what many are thinking but don't want to be caught singing out.

This "constitutional norms" idea is self-canceling. Trump can't do what he's proposing unless he gets elected, and he won't be elected unless people support him, and if people support him then those constitutional norms that forbid what he's proposing don't exist. 

Richard Posner (with Eric Segall) publishes a NYT op-ed titled "Justice Scalia’s Majoritarian Theocracy."

That sounds inflammatory!

The short essay cites some cases in which Justice Scalia, by not recognizing claims of constitutional right, leaves some policy to be determined by the processes of democracy. Since the Americans who participate in our democracy often think through political issues in minds imbued with religion, the results of the majoritarian process could — if you want to stretch and be inflammatory — be called a theocracy.

To be fair, Posner and Segall only say that Justice Scalia's "political ideal verges on majoritarian theocracy."

It's the NYT that's responsible for the headline "Justice Scalia’s Majoritarian Theocracy."

"The Denver-based Little Sisters of the Poor, who sued to avoid complying with the Obamacare contraception mandate..."

"... lost Tuesday in the 10th Circuit Court of Appeals, which ruled it must allow employees to have contraception coverage," the Denver Post reports.

The federal government adopted a regulation that exempts religious employers, such as churches, hospitals, universities, charities and other service providers such as the Little Sisters of the Poor, from covering contraceptives they oppose on religious grounds. However, these groups must actively seek an exemption. A third party then steps in to cover contraceptives for employees.

That is, the Sisters had an exemption, but argued they were burdened by having to go through the government's procedure set up to identify them as falling within the exemption.

They argued that being forced to file for the exemption made them part of "the scheme" to provide their employees access to contraceptives....

The court rejected the claim that complying with the law makes them "complicit" in delivery of contraception.

Here's the PDF of the opinion. Excerpt:

Although Plaintiffs allege the administrative tasks required to opt out of the Mandate make them complicit in the overall delivery scheme, opting out instead relieves them from complicity.

But who decides what "complicity" is? That, itself, is a matter of religious belief. Why does  control over the meaning of complicity belong to the government and not to the individual?

Instead of picking on Indiana, why don't we figure out if we want RFRA laws or not?

Here's Jonathan Adler's explanation of "What will the Indiana religious freedom law really do?"

RFRA laws are common, as shown by this map. Whether or not such laws are good policy, they are about accommodating religious belief, not authorizing discrimination....

The Indiana RFRA is not identical to every other RFRA, but the textual differences are not particularly material....

Are there any scenarios in which a state-level RFRA might result in an individual business owner denying service to a same-sex couple? Perhaps. The most likely scenario would be something like a religious wedding planner refusing to help plan a wedding that violates his or her religious beliefs. But even if such laws eventually allow this sort of thing, it is a far cry from... a general license to discriminate against one’s neighbors....

Indiana has focused attention on RFRA laws, but it's stupid to focus on Indiana. These laws are all over the place. Understand them. Understand how they apply in many different scenarios and how they are limited by courts in their application. Understand that if we're going to relieve religious believers of the burdens of generally applicable laws, courts are going to have to avoid preferring one religion over another. You can't accommodate the religions you agree with or think are sweet and fuzzy and say no to the ones who seem mean or ugly. We need to figure that out. If, in the end, you think the Indiana RFRA is a bad idea, check that map and see if your state has RFRA (or a RFRA-like state constitutional provision) and push for repeal in your state. And get after Congress. Congress started it. Unless you're Hoosier, leave Indiana alone. Stop otherizing Indiana.

AND: I had to wonder What does Garrett Epps think about this? Because Garrett Epps wrote a whole book about how terrible it was for the U.S. Supreme Court to deny special exceptions to religious believers, especially in that case where Native Americans wanted the freedom to use peyote. As I predicted, Epps is otherizing Indiana.

"Why is it that prosecutors and prison administrators are among the first to understand that extreme religious liberty is dangerous and antithetical to core American values?"

"The answer is that many religiously motivated criminals appear in their courts and jail cells. Accordingly, they understand through experience that religious liberty sits atop a slippery slope that lands in the criminal code and a well of human suffering."

Writes lawprof Marci Hamilton in a tribute to the recently deceased. David Frohnmayer, former Oregon Attorney General, Dean of the University of Oregon Law School, and President of the University of Oregon.

Thankfully, Frohnmayer was the Attorney General of Oregon when Employment Div. v. Smith was litigated, because he had the knowledge and wisdom to argue that the drug counselors in that case – who had signed an agreement not to use illegal drugs or they would lose their jobs, and then used peyote as part of a religious ceremony – did not have a First Amendment free exercise right to break Oregon’s criminal laws or to receive unemployment compensation.

Unfairly maligned then and still by those who are so blinded by ideology they refuse to see the facts, history will lionize him for his role in Smith....

Smith is the reason why statutes like the Religious Freedom Restoration Act were passed. It said that there's no right under the Free Exercise Clause to exemptions from the neutral, generally applicable actions of government.

A surprisingly sympathetic article about the asserted right to decline to make cakes/floral arrangements/photographs for a same-sex wedding.

... in the NYT. There's also an excellent video — excellent other than a big on-screen misspelling ("accomodation") — about one very sincere and appealing cake decorator who was ordered by the Colorado Civil Rights Commission "to retrain all of his employees, who include his 87-year-old mother, and to produce a quarterly report detailing any refusals to bake." (It's not a refusal "to bake," I would emphasize, but a refusal to decorate. He's not refusing to bake cakes for gay people, if they want a cake without the message he believes God forbids him to express.)

“I do like doing the wedding cakes,” he said. “But I don’t like having the government tell me which ones I can make and which ones I can’t make, and trying to control that part of my life.”...

There have been more than a half-dozen other instances of business owners, most citing their understanding of Christian faith, declining to provide services for same-sex weddings....

[T]he defenders of the shop owners argue that creating an artistically involved or personalized service for a same-sex wedding is a form of expression that should not be compelled by the government. They reject the discrimination charge, noting that many of the businesses have gay and lesbian customers, and, in some cases, employees....

On a recent day, as Mr. Phillips decorated what he expected would be his final wedding cake until the issue was resolved — an elegant assemblage of gray and white tiers decorated with hydrangea, calla lilies and gerbera daisies — he reflected on his unexpected role in the debate. 

That description of the cake — and the sight of it in the video — has great persuasive effect, I think, on the minds of those who are most likely to resist the idea that some anti-gay-marriage baker has significant free speech rights. I suspect that many of the people on the anti-discrimination side of this argument were picturing a less elegant cake and a less thoughtful cake decorator.

I'm glad to see the NYT producing this article and video, especially after the way Linda Greenhouse treated the issue last spring, which I criticized here:

Bakers?! Isn't that like calling a fashion designer a seamstress? The "bakers" who are resisting government compulsion are wedding cake decorators. At some point, wedding cake decorating is an art, and maybe Linda Greenhouse thinks it's a low art, but please [look at some elegant wedding cakes]....

Where is the low and where is the high when it comes to expression deserving of freedom from government compulsion?...

... I'm stunned by Greenhouse's... phrase: "Despite its free-speech garb, the religious essence of Elane’s argument is clear...." This is horrifying, for at least 3 reasons: 1. The quick disparagement of expression rights as a flimsy coverup ("garb"). 2. The failure to recognize the interrelatedness of expression and religion — religion is expression and expression is often about or motivated by religion. (There's a reason free speech and freedom of religion were written into the same constitutional amendment.) 3. The most important speech is speech that has a core of deep and true belief, so if there's religious essence seeking protection under free-speech garb, the reasoning that begins with "Despite..." is garbage.

Freedom of religion includes not just the freedom to believe but the freedom to try to believe.

This is an interesting concept I noticed as I reread the Hobby Lobby case today, from Justice Kennedy's concurring opinion (boldface added):

In our constitutional tradition, freedom means that all persons have the right to believe or strive to believe in a divine creator and a divine law. For those who choose this course, free exercise is essential in preserving their own dignity and in striving for a self-definition shaped by their religious precepts.

I've written a number of times on this blog that I think many people don't really believe the religion they profess to believe, and in the cases about freedom of religion — including Hobby Lobby — the courts tend to regard sincerity as a necessary component of a freedom of religion claim. But here is Justice Kennedy lumping striving to believe in with actual belief. There's still a sincerity issue, since one might pretend to believe without seeing the nonbelief as a problem to be overcome.

The Supreme Court — in Hobby Lobby — upholds religious exemptions to Obamacare.

"RFRA applies to regulations that govern the activities of closely held for-profit corporations like Conestoga, HL and Mardel."

Once RFRA (the Religious Freedom Restoration Act) covers Hobby Lobby and other for-profit corporations, the government could still win if it could show that what it's done is the least restrictive way to meet a compelling interest.

Here's the opinion PDF. It's 5-4, written by Justice Alito. Along with Roberts, Scalia, and Thomas, Justice Kennedy joins the Alito opinion. He also writes a concurrence. The dissenting opinion is written by Ginsburg.

ADDED: From the opinion:

In holding that the HHS mandate is unlawful, we reject HHS’s argument that the owners of the companies forfeited all RFRA protection when they decided to organize their businesses as corporations rather than sole proprietorships or general partnerships. The plain terms of RFRA make it perfectly clear that Congress did not discriminate in this way against men and women who wish to run their businesses as for-profit corporations in the manner required by their religious beliefs.

The Court found a substantial burden to the religion of the owners of the businesses in being required to facilitate what they see as abortions or to pay fines that could be as "as much as $1.3 million per day, or about $475 million per year, in the case of one of the companies."

Under the statute (RFRA), that substantial burden triggers strict scrutiny, and the Court assumes for the purpose of the opinion that the HHS regulations have a compelling interest, because is so easy to say: Even if the interest is compelling, HHS hasn't used the least restrictive means for serving it.

HHS has already put into place a system for contraceptive coverage for religious nonprofit corporations, and it gave "no reason why the same system cannot be made available when the owners of for-profit corporations have similar religious objections."

Here's some push-back to the dissent:

We do not hold, as the principal dissent alleges, that for-profit corporations and other commercial enterprises can “opt out of any law (saving only tax laws) they judge incompatible with their sincerely held religious beliefs.” Post, at 1 (opinion of GINSBURG, J.). Nor do we hold, as the dissent implies, that such corporations have free rein to take steps that impose “disadvantages . . . on others” or that require “the general public [to] pick up the tab.” Post, at 1–2. And we certainly do not hold or suggest that “RFRA demands accommodation of a for-profit corporation’s religious beliefs no matter the impact that accommodation may have on . . . thousands of women employed by Hobby Lobby.” Post, at 2.1 

If HHS would just give the religious for-profit corporations the same accommodation it already gives to the nonprofit religious corporations, the effect on women employees "would be precisely zero."

I need to spend more time with the opinion, but for now, I'll say that it may be harder for the government to figure out which for-profit corporations warrant the accommodation, but that's the consequence of Congress's own statute RFRA, so it's a problem of the government's own making, not a compelling interest itself to be served by denying religious accommodations. RFRA itself is a monument to the government's lack of interest in avoiding the trouble of figuring out things like this.

UPDATE: I've just spent a lot of time and I've read every word of all of the opinions. I have a bunch of things to say, but maybe not too much before tomorrow, other than to say that contrary to the quote from SCOTUSblog that begins this post, the case isn't restricted to closely held corporations. Any corporation can use RFRA, but it's unlikely that a publicly traded corporation will be able to establish that there is a substantial burden on its exercise of religion, which is what is needed under RFRA to force the government to show that it has a compelling interest and has used the least restrictive means to serve that interest.

"Obama Trolls Tea Party With Bumper Sticker"/"Scalia's Past Haunts Him On Birth Control."

2 teasers from the top of the front page at Talking Points Memo:



Both go to articles written by Sahil Kapur, whose name I first noticed in connection with the Scalia piece yesterday. I didn't blog about that because the legal stupidity of it annoyed me but also bored me too much to explain. I happened to see Kapur's name again this morning as I clicked on a link at Drudge that read "LIMBAUGH RIPS MEDIA": 'PIG IGNORANT'..." Limbaugh excoriates the media for not understanding that self-employed persons — such as Matt Drudge — have to pay quarterly installments on their taxes, so Drudge was not lying when he said he was already paying the penalty for declining to buy health insurance.

The individual mandate went into effect Jan. 1 of this year, and most people paying their taxes right now are paying taxes for 2013. 'Dude, there's no penalty until next yr,' Sahil Kapur of the left-wing Talking Points Memo tweeted.  Kapur's colleague at TPM Dylan Scott wrote a full story with a headline alleging Drudge was 'probably lying.' 'Americans don't pay a penalty for not having health insurance until they file their 2014 taxes -- in 2015,' Scott wrote.

Now I see Kapur's name on that piece about the bumper sticker, which, at the inside page, is headlined "Obama Co-Opts Tea Party Slogan For Obamacare Bumper Sticker." We talked about that bumper sticker last night. My favorite comment on my post is from Carl Pham, who says:

Love it. An effeminate l'il toothless snake, slim 'n' trim from his regular yoga class, sipping chai latte and curling up with his iPad to do a little Facebooking on the back of a lime-green Prius. I'm guessing the same design team that came up with Pajama Boy?

I also like Dr. Weevil:

Unlike the Gadsden flag snake, this one doesn't seem to be a rattlesnake. The point of the original flag is that the snake-warrior doesn't strike first, doesn't go in search of people to bite, but if you step on him, he will bite back and hurt you worse than you hurt him. The Obamacare snake just bites people.

Yeah, and also, if you tread on a stethoscope, it doesn't attack you. You can quite successfully survive stomping all over a stethoscope. And why would they want to portray that stethoscope as being like a rattlesnake? The message seems to be that Obamacare is threatening you and can kill you.

Anyway, I have no problem with TPM noting that Obama has appropriated the old Gadsden flag, which has of late been strongly associated with the Tea Party. And it's not Kapur who called Obama a troll. I just found all that interesting and was surprised to see Kapur's name again.

It's that Scalia piece that is so irritating. Kapur is not responsible for the photo of Scalia coming out of the darkness with his hands in the "Boo!" position under the word "Haunts." But he is responsible for writing such a nitwit explanation of a legal problem. Scalia wrote the majority opinion in the case that most clearly explains what the Free Exercise Clause means — which is that there's no constitutional right to exemptions from neutral, generally applicable laws. The case that's currently before the Supreme Court (Hobby Lobby) is based on the statute — the Religious Freedom Restoration Act — that Congress passed after the Court decided that Free Exercise case, so now there is a statutory right to exemptions. There's nothing haunting about this. There's the Constitution, which needed interpretation, and there are statutes, which can extend more rights than the Constitution provides. These are different texts and they require independent interpretation.

It's dumb (or disingenuous) to portray Scalia as somehow troubled by needing to apply a statute that requires courts to protect religion more than the Constitution requires. In fact, if anything, I could see him being especially deferential to Congress's choice to trump a judicial opinion with a clearly stated statutory entitlement. The problem to be argued before the Court today is about 2 statutes and the way they interact. It's Congress, not Scalia, that is "haunted" by the past. Congress enacted the Religious Freedom Restoration Act, a clear text, and it had the power to put text in the Affordable Care Act that would exclude the application of the RFRA. It didn't!

I've explained this before, by the way, back in November when the Supreme Court granted cert. in the Hobby Lobby case:

This is about statutes and the politicos who produce them, not the judges who stand back and let them trip all over themselves pandering to everyone. If the Congress that passed the Affordable Care Act had wanted to exempt it from the Religious Freedom Restoration Act, it could have done so explicitly. It did not. Why should the Court cut back Congress's absurdly broad RFRA to help it out with what it failed to bother to do with the ACA?

NYT editors "perplex[ed]" by Justice Sotomayor's perception of a burden on religion in the requirement that some nuns "fill out paperwork."

The nuns don't want any connection — even a little paperwork — to contraception and seek an exemption. The source of religious exemptions is the Religious Freedom Restoration Act, which requires relief from burdens on religion imposed by the federal government (unless those burdens are needed to serve a compelling interest). What is "perplexing" here?

The audacious complaint in this case is against the requirement that such groups sign a short form certifying that they have religious objections to providing coverage for contraceptive services, a copy of which would go to their third-party insurance administrator....

The certification requirement, an accommodation fashioned by the Obama administration to bolster the protection of religious exercise without depriving women of an important benefit, does not rise to a substantial burden.

That is, the burden upon which the nuns base their claim for religious accommodation was itself a religious accommodation.

Why didn't Congress simply write an exception to the Religious Freedom Restoration Act into the Affordable Care Act? The government would be home free. It wouldn't even have had to provide the certification work-around to accommodate the conscience of the nuns. The Free Exercise Clause of the Constitution doesn't require relief from burdens imposed by generally applicable laws that were not designed to target religion. The answer to the question is obvious: Congress scarcely squeezed the ACA through and couldn't bear any additional friction in the legislative process. RFRA was left as a source of future litigation, even as Congress made a show of catering to the young women who feel cared for when contraception is an entitlement.

Congress failed to deactivate RFRA, and the Democratic Party shored up power with its "war on women" rhetoric, and the result of those thoroughly political, tactical choices is that these nuns have a little legal ground to stand on.

I'm not perplexed at all.

"Adultery, including adulterous cohabitation, is not prosecuted. Religious cohabitation, however..."

"... is subject to prosecution at the limitless discretion of local and State prosecutors, despite a general policy not to prosecute religiously motivated polygamy. The court finds no rational basis to distinguish between the two, not least with regard to the State interest in protecting the institution of marriage."

Says federal judge Clark Waddoups in Brown v. Buhman, a case about the Utah anti-bigamy statute, which makes it a felony "when, knowing he has a husband or wife or knowing the other person has a husband or wife, the person purports to marry another person or cohabits with another person." From the first time I noticed this issue, I've thought the answer was obvious. You can't punish people for the ideas they happen to have about why they are living in a household with multiple sexual partners. Call it a marriage or call it a sandwich. Imagine that God blesses your relationship or imagine that your kitty cats brought you together. It's no proper concern of the government's.

Now, if you want to legally register your marriage and qualify for various marriage-connected benefits and privileges, it's a different matter, and Judge Waddoups makes that clear. This case was not about that. It was about people who live together and perform private marriage rituals and call themselves married. Prosecuting these people, while other married people are left alone when they commit adultery, is criminalizing their speech and beliefs. If you understand the issue, I think you'll see this must be the answer.

This does not lay the groundwork for finding a right to marry multiple spouses any more than it compels the government to prosecute adulterers.

Why is Linda Greenhouse singling out Justice Scalia in this op-ed about the question of religious exemptions to the Affordable Care Act?

The Supreme Court granted cert. in the Hobby Lobby case, in which a business seeks to avoid the requirement to provide coverage for abortifacient-type birth control on the ground that it burdens its free exercise of religion and is not justified by a compelling government interest. This claim is based on the Religious Freedom Restoration Act, a statute that was designed to give religious believers rights that the Supreme Court had recently determined were not guaranteed by the Free Exercise Clause of the Constitution. The case that restricted the scope of the Free Exercise Clause was Employment Division v. Smith, and the majority opinion was written by Antonin Scalia.

That is, of all the Supreme Court Justices who have resisted constitutional arguments for giving special exemptions for religion, the first name on your list should be Antonin Scalia!

But Linda Greenhouse's piece ends:

"Supreme Court to Decide Whether Corporations Can Pray."

Snarky headline at the Bill Moyers website on an article about the pending Supreme Court case dealing with whether religious persons who have set up their business using the corporate form can be compelled by the government to provide their employees with health insurance that covers drugs that they believe murder human beings.

The case isn't about praying. It's about money and what it means to be compelled to contribute your money to something that you sincerely believe God requires you to fight to the end. I think it's close to the same problem that individuals face when they pay their taxes and believe that something the government is using the money for is deeply wrong. For example: war.

But the Bill Moyers operation thinks mocking religious people is a good move. I say it's prime jackassery... except to the extent that it's old-school, left-wing hatred of corporations. Let's see how they feel if Hobby Lobby loses its case — as I think it will — and its owners dissolve the entire operation to maintain religious purity — would they? — and throw 13,000 employees out of work. I suspect the the Bill Moyers folk would double down on their contempt for religion.