“False Faith”: Did Justice Scalia Call All Non-Christians Irrational?
Last Sunday, conservative Justice Antonin Scalia addressed the Living the Catholic Faith Conference conference in Denver, Colorado. During his speech, however, the justice appeared to suggest that Jews, Muslims and other non-Christians are somehow less rationalthan people who share his faith:
In Washington, Scalia said, the pundits and media couldn’t believe in a miracle performed under their noses.
“My point is not that reason and intellect need to be laid aside,” Scalia said. “A faith without a rational basis should be laid aside as false. … What is irrational is to reject a priori the possibility of miracles in general and the resurrection of Jesus Christ in particular.”
“A priori” is a philosophical term which is usually used to refer to a claim that one has knowledge independent of experience, so it is unclear how anyone could reject the central Christian belief that Jesus Christ was resurrected from the dead under Scalia’s standard given that no living person was around to actually experience it. More importantly, though, the clear implication of Scalia’s statement appears to be than all non-Christians — or approximately two-thirds of the world’s population — are “irrational.”
If Scalia indeed holds this view, than it raises serious questions about whether he can set aside this belief when called upon to interpret a Constitution that requires all religious beliefs to be treated with equal dignity. Moreover, it could have profound implications for the burgeoning debate over whether the Obama Administration’s contraceptive access rules are upheld by the Supreme Court.
In 1990, Scalia wrote the seminal Supreme Court case interpreting the Constitution’s guarantee that all Americans can freely exercise their faith, Employment Div. v. Smith. In Smith, Scalia explained that a law does not suddenly become unconstitutional because someone raises a religious objection to it. Scalia explained that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).’” This is why a law ensuring access to contraception is constitutional even if several Catholic bishops object to it.
Smith, however, did not involve Christians — it involved members of a Native American faith that wanted to use the drug peyote in a sacred ritual even though that drug was banned. Hopefully, Scalia recognizes that the rule he announced in Smith must apply equally to faiths he views as “rational” and those he also may view as “irrational.”
By: Ian Millhiser, Think Progress, March 7, 2012
“The Pharisees”: Bishops Go Off The Deep End
Just as I was publishing my post about Catholic tribalism on Friday, predicting that the brilliant White House “accommodation” on contraception wouldn’t mollify the U.S. Conference of Bishops, the bishops released a statement that made them seem, well, mollified, at least a little. The new Health and Human Services regulations were “a step in the right direction,” their statement read, and so I softened an assertion that the bishops would continue to wage war against the compromise.
I needn’t have soft-pedaled. Only a few hours later the bishops came out, guns blazing, insisting the only solution they would accept would be for “HHS to rescind the mandate for those objectionable services.” By any employer, for any employee in the entire country — a country where the vast majority of voters, and of Catholics, support Obama’s stand. And at Sunday Mass, bishops and parish priests throughout the nation read aloud the stunningly political letters about the controversy they already had planned. Now, with the bishops’ blessing, Republican are hard at work on legislation that would force HHS to strip the contraceptive coverage requirement for all employers, not just religious employers. Sen. Roy Blunt would allow employers to decline to cover any service they deem objectionable; Sen. Marco Rubio would restrict the legislation to contraception coverage.
I have a couple of reactions to the bishops’ extremism. First of all, as someone raised Catholic, I wonder why they’ve never read letters about any of their social justice priorities: universal healthcare, increased protection for the poor, labor rights, or action to curb climate change? Why does this topic – not even the morally challenging issue of abortion, but the universally accepted practice of birth control – merit such a thundering reaction from the pulpit?
Second, as an American, I also wonder: How do they continue to demand tax-exempt status when they’re railing in their churches about blatantly political – and divisively partisan – public concerns? As the first writer on my remarkably sane Catholic tribalism letters thread remarked, their public support for the extremist GOP position makes me think they should register as a Republican political action committee rather than remain a tax-exempt religious institution outside the bounds of politics.
Even as the bishops became more shrill and extreme, the debate over contraception coverage became smarter and calmer last week. Major Catholic organizations supported Obama’s Friday move, including the Catholic Health Association, Association of Jesuit Colleges and Universities and Catholic Charities USA. Before the president’s announcement, famed attorney David Boies did the most to usher in the new tone by framing the HHS rules as a matter of labor law. Boies doesn’t believe, by the way, that HHS is in any way required to provide the exemption for churches it wrote into its regulations even before the compromise. If the church is employing people, whether co-religionists or not, it has a responsibility to comply with employment law. He proved that even the administration’s initial regulations, exempting churches, was a strong attempt at accommodating anti-contraceptive religious groups.
But maybe the best argument on behalf of the Obama administration’s position comes from a very unlikely source, as Jay Bookman points out: Supreme Court Justice Antonin Scalia. In two different decisions, the conservative Catholic Scalia has sided with the court majority in finding that religious teachings can’t justify religious employers – or employees — failing to comply with labor law. In the 1990 Employment Division v. Smith decision, regarding an employer’s ability to fire a Native American employee who used peyote, despite the employee’s claim that using the drug was a religious rite, Scalia wrote:
“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.” In an even more directly relevant 1982 decision holding that Amish employers must comply with Social Security and withholding taxes, though their faith bars participation in government support programs, Scalia wrote:
Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.
I’ve written repeatedly that my inability to quit the Catholic Church entirely comes from the fact that its social teachings formed my social conscience, and to this day some of the people doing the most good for the poor and the excluded are devout Catholics. But the bishops are impossible to defend. Today, they are working on behalf of the Republican Party. “They have become the Pharisees,” says Andrew Sullivan, a conservative practicing Catholic. “And we need Jesus.”
By: Joan Walsh, Editor at Large, Salon, February 13, 2012
Plaintiffs Challenging Affordable Care Act In The Supreme Court Admit That The Law Is Constitutional
One of the oddest arguments made by the plaintiffs now challenging the Affordable Care Act before the Supreme Court is a claim that, if just one small part of the law is declared unconstitutional, the whole law must fall with it. The overwhelming majority of judges who have heard ACA cases rejected the ridiculous claim that any part of the law is unconstitutional. And, of the handful of judges to strike part of the law down, only one — the guy who included an explicit shout-out to the Tea Partyin his opinion — accepted the legally indefensible position that the whole law must fall.
In their attempt to see the entire Affordable Care Act fall, however, several of the plaintiffs challenging the law committed what should be a fatal blunder — they effectively admit that their entire constitutional challenge to the law is garbage.
The primary attack on the ACA targets its provision requiring most Americans to either carry health insurance or pay slightly more income taxes — the so-called “individual mandate.” This insurance coverage provision exists because without it, the law’s other provisions ensuring that people with preexisting conditions can obtain insurance cannot be implemented. If patients can wait until they get sick to buy insurance, they will drain all the money out of an insurance plan that they have not previously paid into, massively driving up costs for the rest of the plan’s consumers.
This problem doesn’t just make the insurance coverage requirement good policy, it also makes it constitutional. The Constitution doesn’t just give Congress sweeping authority to regulate the national economy, it also authorizes it “[t]o make all laws which shall be necessary and proper for carrying into execution” regulations of interstate commerce. As conservative Justice Antonin Scalia explains, this means that, “where Congress has the authority to enact a regulation of interstate commerce, it possesses every power needed to make that regulation effective.”
So, with this background in mind, consider the following passage from the private plaintiffs’ brief arguing that the entire law must fall if the insurance coverage rule goes down:
The mandate was intended to be a direct subsidy to insurance companies, as compensation for requiring them (in the guaranteed-issue provision) to insure against “risks” that have already come to pass and forbidding them (in the community-rating provision) from using actuarially sound insurance premiums. The mandate thus works to counteract the powerful inflationary impacts of these other provisions, which would otherwise make premiums in the individual insurance market prohibitively expensive, thereby frustrating Congress’ goal of affordable health insurance. And Congress further viewed the mandate as necessary to prevent “adverse selection” to “game” the new insurance rules, which proponents warned would spark a “death spiral” in insurance.
The guaranteed-issue and community-rating requirements thus cannot operate without the mandate in the manner intended by Congress. Rather, “their associated force—not one or the other but both combined—was deemed by Congress to be necessary to achieve the end sought.” To strike the mandate alone would impermissibly eliminate a central quid pro quo of the Act. If the mandate falls, the guaranteed-issue and community-rating regulations must therefore fall with it, as the Government itself has conceded.
So the plaintiffs admit that, without the insurance coverage requirement, premiums will become “prohibitively expensive” and that the ACA’s provisions protecting people with preexisting conditions or who otherwise are highly likely to need health care (what are known as “guaranteed-issue” and “community-rating” laws in the jargon of health policy) “cannot operate without the mandate in the manner intended by Congress.” This is a flat out admission that the Scalia Rule applies in this case. Guaranteed issue and community rating are regulations of interstate commerce, and thus Congress has “every power needed” to make them effective — including the power to enact the insurance coverage requirement.
I discuss this rather breathtaking admission at greater length in an amicus brief I filed Friday on behalf of several health provider organizations, which also includes some more details about why the plaintiffs’ attempt to take out the entire ACA has no basis in law. Ultimately, however, there is no need whatsoever for the justices to consider how much of the law stands or falls without the coverage requirement. The private plaintiffs already gave away the farm when they admitted that their entire legal challenge rests on a crumbling foundation.
By: Ian Millhiser, Think Progress, January 30, 2012
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