Statement on Religious Liberty from USCCB

[West, Ellis]

Permit me to elaborate somewhat on Marci’s statement.  (1) The Bishops’ Statement fails to distinguish between laws that discriminate against a religion or religious belief/practice, i.e., laws whose primary purpose is to inhibit or harm a religious belief/practice, and laws that unintentionally and indirectly burden the practice of one’s religion.  Although the former are clearly unconstitutional and to be entirely avoided, the latter are constitutional and cannot be avoided.  (2) Even if one assumes that religious liberty entails a right of persons under certain circumstances to be exempt from obeying valid, secular laws that unintentionally and indirectly burden their practice of religion, that does not mean that under all circumstances they have such a right, but the Statement’s language certainly implies otherwise.  For example, it begins (third sentence) with this claim: “To be Catholic and American should mean not having to choose one over the other.  Our allegiances are distinct, but they need not be contradictory . . . .”  The only way, of course, that such a statement could be true is if Catholics had a right to disobey with impunity any and all laws that for religious reasons they did not want to obey, and later the Statement says exactly that: “[N]o one should be forced to act in a manner contrary to his own beliefs . . . .”  (3) The Statement’s account of the original meaning of the religion clauses is inaccurate, for there is little, if any, historical evidence to support the claim that early Americans thought that the principle of religious liberty or the religion clauses entailed to right to religion-based exemptions from valid, secular laws.  (4) The statement confuses the moral “right” of conscientious objection, based on natural law, with a constitutional right to religion-based exemptions, based on the religion clauses.  But don’t take my word for it.  Read the Statement.

Ellis M. West
Emeritus Professor of Political Science
University of Richmond, VA 23173
804-289-8536
ewest at richmond.edu

From: religionlaw-bounces at lists.ucla.edu [mailto:religionlaw-bounces at lists.ucla.edu] On Behalf Of Marci Hamilton
Sent: Friday, April 13, 2012 8:19 AM
To: Law & Religion issues for Law Academics
Cc: Law & Religion issues for Law Academics
Subject: Re: Statement on Religious Liberty from USCCB

This is a statement of their preferred public policy not constitutional law.

Marci


On Apr 13, 2012, at 6:47 AM, Marty Lederman <lederman.marty at gmail.com<mailto:lederman.marty at gmail.com>> wrote:
The Conference of Catholic Bishops just issued this major Statement on Religious Liberty:

http://usccb.org/issues-and-action/religious-liberty/upload/Our_First_Most_Cherished_Liberty.pdf

I'd be curious to hear what others think of it.  Its basic thrust is that religious liberty is now acutely "under attack" in the U.S., in a way it has not been in quite a while.  Indeed, "what is at stake" is no less than "whether America will continue to have a free, creative, and robust civil society—or whether the state alone will determine who gets to contribute to the common good, and how they get to do it."  Do you think they've made the case for such an indictment?

Furthermore, it quotes liberally from Dr. King's letter from the Birmingham jail, and urges citizens to "have the courage" not to obey the laws that allegedly are presenting this profound threat.  (What are the odds there will be much civil disobedience of the laws they have in mind? -- not a rhetorical question.)  And it invokes  Lincoln at Gettysburg in asking for a fast "for a new birth of freedom in our beloved country."

Thoughts?
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