Supreme Court won't hear appeal in Catholic Charities oftheDioceseof Alba...

[Hamilton02 at aol.com]

Brad-  Your views about the framers are not even supported by the  ministers 
at the time of the framing, who preached the rule of law from the  pulpit, as 
I have documented.  The framing generation was deeply opposed to  
"licentiousness," which they viewed as acting immorally and contrary to  law.  The move in 
Yoder to permit religious entities to trump  neutral, generally applicable 
laws is an outlier in Supreme Court jurisprudence.  While it is true that 
various lobbyists were capable of persuading Congress  Yoder was the prevailing law 
before Smith, and  thereby obtaining RFRA, neither history nor case law 
supports such a reading of  either the framing or the jurisprudence.  
 
Now, you can certainly argue for more robust rights for religious  entities 
to avoid the law, but that is an argument for altering the balance  between 
religious entities and the rest of society.  As the  Boerne Court majority made 
clear, that is the rule that requires  constitutional amendment.
 
In any event, this is a far more abstract level than the Catholic Charities  
issue deserves, because you have not answered the fact that Catholic Charities 
 is overwhelmingly funded by tax proceeds.  In many respects, these are  
public institutions carrying out public social services.  The double  entitlement 
of public funds and right to avoid neutral, generally applicable  laws is 
about as far from Madison's Memorial and Remonstrance as you  can get.
 
Marci
 
Marci A. Hamilton
Visiting Professor of Public Affairs
Kathleen and Martin Crane Senior Research Fellow
Program in Law and Public Affairs
Woodrow Wilson School
Princeton University
 
 
 
 
 
 
In a message dated 10/2/2007 6:58:48 A.M. Eastern Daylight Time,  
bp51414 at alltel.net writes:

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

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