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Tuesday, March 25, 2014

That Parade Of Horribles

Oh my:

"Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard," [Justice Kagan] told Paul Clement, the lawyer arguing against the mandate for Hobby Lobby and Conestoga Wood. "So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative."

Kagan's remarks might sound familiar to the legally-trained ear. In a 1990 majority opinion in Employment Division v. SmithScalia alluded to the same examples of what might happen if religious entities are permitted to claim exemptions from generally applicable laws. He warned that "[a]ny society adopting such a system would be courting anarchy."

I love Oregon v Smith.  I know Scalia won't be intellectually consistent and is hooking his wagon to the RFRA star, but it's sweet to throw that shit back in his face.


March 25, 2014 | Permalink


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