The Rhetoric and the Reality of Employment Division v. Smith

This column by Linda Greenhouse offering a defense of the HHS contraception mandate begins mistakenly, in my opinion, when it claims that the “obvious starting point” in considering the question of the claims of conscience being made against the mandate is “the 98 percent of sexually active Catholic women who, just like other American women, have exercised their own consciences and availed themselves of birth control at some point in their reproductive lives.”  I think that is not the right place to begin, but it’s territory that has been covered at length elsewhere.

The more interesting point that Greenhouse makes is that Employment Division v. Smith demonstrates that the claim made by those who are opposed to the contraception mandate — a claim “to conscience that trumps law” — is one which the Supreme Court emphatically rejected in Smith.  “[T]hat,” Greenhouse writes, “is not a principle that our legal system embraces.”

Both the way of posing the proposition and the conclusion seem, again, mistaken to me, but let’s concede the former and explore the latter.  Suppose it is really true that we are dealing with a claim that “conscience trumps law.”  “Our legal system,” in fact, “embraces” just this claim in a great variety of situations.  If it did not, the Roman Catholic Church would be compelled to appoint female priests; it would be forbidden from offering sacramental wine to children; religious communities would be compelled to hire those who don’t share their religious commitments.  Moreover, as Greenhouse recognizes later, “our legal system” responded to Smith by passing some statutes which make it highly likely that in some situations, “conscience trumps law.”  So it simply is not true that “our legal system” does not make any room for the protection of conscience when it conflicts with law.

Greenhouse’s praise for Smith also represents, I think, a widespread misconception about Smith.  The misconception is that Smith is an iron rule with no exceptions — that any law which appears “neutral” when considered in some sort of antiseptic laboratory (i.e., neutral by the plain meaning of the text) is permissible.  But in fact, that isn’t at all what Smith held.  As I have discussed here, Smith’s exceptions are, or are rapidly becoming, at least as important as its rule.  The rhetorical appeal of Smith’s hard-edged language has given people the misimpression that “our legal system” admits of no exceptions for religious conscience, ever.  And this, from my point of view, is another problem with Smith.  It confuses the discourse about religious liberty — it warps it by suggesting a hard, exceptionless rule as somehow constitutive of “our” political and legal traditions.  But that rule — and the values which underwrite it — have never, in fact, represented our approach to religious liberty.

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