Well, this is going to be an interesting tightrope to walk, I think Scalia is not only Catholic, I think he’s Opus Dei. I bet the Court refuses to hear it.
Well, Scalia was delivering the opinion of the Court, so he was “right” in the sense that it is the final word on US constitutional law. Will he back track? Probably. Scalia is driven more by ideology and issue-advocacy than jurisprudential principles (though he likes to disguise his judicial activism as originalism).
This is not a complete presentation of Scalia’s views.
Nope.
The point your are trying to make is not clear to me. Can you spell it out?
The whole point of Supreme Court jurisprudence is to interpret the law. In ascertaining the Constitution’s meaning and application tests are arrived at. An interpretation is, by definition, words beyond those of the original text. But for those of us who are constructionists an interpretation does not go beyond the intent and meaning of the Constitution even though it may apply it to circumstances beyond the foresight and imagination of the framers. If that’s what you mean by going beyond the protections of the 1st Amendment understood as the literal words of the Free Exercise Clause, I guess you’re right.
Scalia wrote the opinion in neither case I mentioned.
Just one question: The HHS mandate is definitely generally applicable, no questions there. I’ve seen a thread where someone tries to say, essentially, that it does not meet the second criteria you’ve set forth- namely, that it also does NOT refer to a specifically religious practice.
A consistent** 2,000** year old law that was punished very severely with the most severe penances and ecclesiastical sentences from the very beginning! So much so that helping in the latter (abortion) results in the automatic application to the soul, of the Church’s MOST severe punishment- Ex-communication, which is exclusion from the means of grace in the church, and from the Catholic pov, is a very bad state of affairs to be in. More so, in Catholic morality (See CCC on morality), giving occasion to others to commit objectively grave immoral acts (like all those three things here), by enabling, helping, advising or even by bad conduct, is scandal- Itself a serious sin.
For Catholics, it is definitely a matter of religious practice!The Supreme Court ruled on what the constitution requires. Congress cannot override a Supreme Court decision on what the constitution requires with a statute, but they can add to what the constitution requires with a statutue. As Roberts wrote for the Court, "Under RFRA, the Federal Government may not, as a statutory matter, substantially burden a person’s exercise of religion, “even if the burden results from a rule of general applicability.” §2000bb–1(a). " RFRA’s requirements are statutory, not constitutional. [emphasis added]
What I posted in the seemingly identical sister-thread. I believe selection for military service cuts across all segments of society and would, from a common sense perspective, seem to fit the definition of a compelling state interest that is generally applicable.Deus_lo_vult said:
For the same reason that banning the use of peyote is not specially directed or forcing the Amish to violate their religious beliefs by forcing to pay taxes is not specifically directed, because the interference with the religious practice is incedental to the law. The Obama administration did not create the mandate to force Catholics to provide birth control (or at least there is no evidence of that) just like Oregon did ban peyote to mess with religious practices and the Feds did not create incomes taxes to mess up the Amish’s practice. If the Obama administration had passed the mandate with the specific purpose of messing with Catholic practices, it would be unconstitutional.Just one question: The HHS mandate is definitely generally applicable, no questions there. I’ve seen a thread where someone tries to say, essentially, that it does not meet the second criteria you’ve set forth- namely, that it also does NOT refer to a specifically religious practice.
But NOT using any artificial contraception or participating in any form of sterilization or abortion (even by abortifacent pills) is very much a law of catholic faith!
So, really, why would people conclude that this does NOT concern a specifically religious practice?
There is no constitutional need for a compelling interest, only a statutory need. I don’t know why you might think cutting across all segments of society would matter. The peyote restriction only burdened the religious practices of a small part of society.
And conscription for military service only burdens a small minority of religious Americans, nevertheless, their conscientious objection is protected. Most of us don’t practice religions that forbid us from serving in the armed forces. I’m not sure that the size of affected minorities is the only criterion. What I was referring to when I said “cuts across…” was that a draft is generally applicable.
The mandate is generally applicable, too.
I edited my post substantially while you were replying. Perhaps you’d like to address those points.