Thanks to Marc and Mark for asking me to blog with them for the next few weeks. As I am just a law-and-religion amateur, being able to exchange thoughts with scholars of their caliber is a real honor.
To get things started, I haven’t seen much about this dissent a couple of weeks ago by a group of five Tenth Circuit judges from a denial of an en banc hearing in cases involving the contraceptive mandate as applied to non-profits. The tenth Circuit, sua sponte, considered whether to rehear the cases en banc; the plaintiffs, who were challenging the mandate, had lost before the initial panel. The full court denied rehearing en banc , but five judges were sufficiently disturbed to write a strongly-worded dissent. The core of their argument is as follows:
Put another way, the panel majority may be saying that it is the court’s prerogative to determine whether requiring the plaintiffs to execute the documents substantially burdens their core religious belief, regardless of whether the plaintiffs have a “derivative” religious belief that executing the documents is sinful. This is a dangerous approach to religious liberty. Could we really tolerate letting courts examine the reasoning behind a religious practice or belief and decide what is core and what is derivative?
This is the real danger, I think. You have what John McGinnis calls a “scribal” caste without much (as Mark rightly notes) personal connection to traditional religious thought or concepts determining what is “really” important to the religion of the litigants. It is no surprise that in such cases, the judges favor the state, because how serious could religious people actually be about matters the scribes see as unimportant?
A second, non-legal topic. My wife and I have three grade-school children, and for the first time this year, I heard multiple conversations over the summer about the multitude of school holidays that need to be accommodated into the schedule. Not just Rosh Hashanah, Yom Kippur, Christmas and Easter, but also Eid and the Lunar New Year are now recognized in the New York public schools; the Hindu festival Diwali is also being considered. So on the one hand, legal scribes reject accommodation for beliefs not considered “core,” yet other arms of the state are increasingly conceding the centrality of expression of religious beliefs in a very public way. Since as a general matter, I believe culture eventually prevails over formal legal doctrine, this kind of contrast is something to watch.