The history of American public education may be told as a history of gradual secularization driven not by religious neutrality but religious enthusiasm.
In the second book of the 16th century novel by Rabelais, the voracious young giant Pantagruel, “large as life and much nosier,” is sent to Paris for his education. There he displays prodigious academic aptitude, mastering every conceivable subject with the greatest ease and besting the most able rhetoricians and philosophers in debate. So great is his reputation that he is summoned to adjudicate a law suit—a “controversy so involved and jurisprudentially abstruse that the highest court in the land found it about as clear as Old High German.”
The Supreme Court has issued its long-awaited ruling in Burwell v. Hobby Lobby Stores, Inc. On both the standing and merits questions under the Religious Freedom Restoration Act, the federal government lost. In a 5-4 majority decision authored by Justice Alito, the Court held that:
- Closely held for-profit corporations such as Hobby Lobby are “persons” within the compass of RFRA and can exercise religion (Justices Breyer and Kagan did not decide this issue one way or the other);
- Closely held for-profit corporations that have religious objections to providing contraception as part of their employee health plans suffer a substantial burden on their religious exercise by operation of the contraception mandate; and
- Even if the government’s broadly formulated interests in “public health” and “gender equality” are compelling (a question left undecided by the majority opinion but seemingly embraced in Justice Kennedy’s concurrence), the government nevertheless has failed to achieve its interests by the least restrictive means.
The least restrictive means portion of the analysis was always the most difficult part of the test for mandate supporters. It is, as the Court said, “exceptionally demanding and it is not satisfied here.”
This next Liberty Law Talk is with Marc DeGirolami on his new book, The Tragedy of Religious Freedom (Harvard University Press, 2013). Central to DeGirolami's argument is the failure of monistic accounts that seek to resolve religious liberty disputes by cosmic appeals to neutrality, equality, or other universal rationales. These fail because they do not consider the range of conflicts, practices, traditions, and meanings that are at stake in these highly controverted cases. Similarly, DeGirolami takes issue with those who deny even the possibility of the concept of religious freedom. Instead, he looks in a Burkean manner to how the practices…