Destroying religious freedom

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Ever alert for Republican wackiness, TPM calls our attention to a recent TV interview with Ed Martin, who’s got the GOP nomination to run against Rep. Russ Carnahan to represent Missouri’s Third District in Congress.

One thing I like to say is: America is great, not because of our
genetics. We’re great because we created a place and space where people
can be free. And they can choose Christ, they can choose to be faithful.
They can worship, and they find their way to the Lord. And — or some
of them don’t. We sure want them all to, but some of them don’t.

Part of that freedom — when you take a government and you impose,
and take away all your choices. One of the choices you take away is to
find the Lord. And to find your savior.

And that’s one of the things that’s most destructive about the growth
of government. It’s this taking away of that freedom. The freedom —
the ultimate freedom, to find your salvation, to get your salvation. And
to find Christ, for me and you.

And I think that’s one of the things that we have to be very, very
aware of. That the Obama Administration and Congressman Carnahan are
doing to us.

There’s no indication that if Martin were asked to connect the dots, he could point to any specific way that the “growth of government” under Obama and Carnahan has undermined the ability of Americans to find Christ. It’s just that O/C = big govt = no ultimate freedom. But there is a plausible recent example of such undermining, at least if taking up cudgels on the conservative side of the culture wars appeals to you. It’s the Supreme Court’s decision
in Christian Legal Society v. Martinez, which upheld the right of the Hastings School of Law to deny official status to the school’s chapter of the Christian Legal Society for having a policy of excluding non-repentant gays and lesbians.

The only trouble is that if you want to blame someone for putting us on the road to serfdo…er, Christian Legal Society, it should be that paragon of constitutional originalism, Antonin Scalia, who in 1990 persuaded four mostly conservative justices to go his way in Employment Division v. Smith. That decision made it impossible for the “pro-religion” conservatives on the current court to actually argue on behalf of the constitutional guarantee of religious free exercise. The Hastings policy that officially recognized student groups must admit all comers may be idiotic (a Democratic club must admit Republicans?), but it’s neutral and generally applicable–the Smith standard.

However, if you look at, say, Timothy Dalrymple’s critique of CLS over at Patheos, you’ll find nary a mention of Smith. Dalrymple is more than prepared to believe that the court majority acted against religious interests, but in fact, thanks to Smith, there never had to be a balancing of the right of free exercise against the principle of equality embodied by an “all comers” policy. And the fact is, there’s real tension between the two that we as a society, and the Supreme Court as the arbiter of the Constitution, ought to face up to.

As retired Justice David Souter said in his Harvard commencement address,”The Constitution is a pantheon of values, and a lot of
hard cases are
hard because the Constitution gives no simple rule of decision for the
cases in which one of the values is truly at odds with another.” One of the worst features of today’s blog-eat-blog world is that it allows us to pretend that there are lots of easy answers.