Supreme Court won't hear appeal in Catholic Charities oftheDioceseof Albany v. Dinallo

[Brad Pardee]

On the contrary, I think Alan's choice of the term "debased" was substantially more charitable than current free exercise jurisprudence deserves.  The essence of religious freedom is that a person ought not be forced to choose between obeying their God and obeying their government unless there is a clear and unmistakable need to require it.  I've always believed that the founding fathers understood this, which is why the Constitution protected free exercise, which is by definition an activity, and not merely free belief.  When legislatures passed the first amendment, they ceded certain powers, and it is the appropriate role of the courts to determine if the legislatures are now circumventing those self-imposed limitations.  If the legislatures you have placed your trust in wish to take those powers back, all they need do is repeal the first amendment and then they can regulate the degree to which a person may practice their religion and live in accordance with their religious beliefs all they wish.  But the legislatively-approved Constitution, with all its amendments, are designed to determine what part of government does what and what the limits are upon what those various parts can do.  Those Constitutional protections don't disappear when "an inevitable question of public policy" makes them inconvenient.  At least, they're not supposed to.

Brad
  ----- Original Message ----- 
  From: hamilton02 at aol.com 
  To: religionlaw at lists.ucla.edu 
  Sent: Monday, October 01, 2007 12:33 PM
  Subject: Re: Supreme Court won't hear appeal in Catholic Charities oftheDioceseof Albany v. Dinallo


  I would replace Alan's characterization of free exercise jurisprudence as "debased" with "enlightened".  Especially in cases like these, the "autonomy" of religious institutions cannot be the guiding principle.  What about the "autonomy" of those who seek medical services contrary to the religious entity's beliefs in an era of increasing consolidation of medical services?  The issue poses an inevitable question of public policy balancing and belongs properly to the legislatures, not the courts.  This is especially so when the vast majority of the funding is coming from the government and not the private, religious institution.  Typically, over 80% of Catholic Charities funding comes from public tax dollars.

  Marci
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