Discussion: Kagan Throws Scalia's Own Religious Liberty Arguments Back In His Face

Discussion for article #218998

Justice Kagan has some massive flaws in Her logic.

First, the idea the “entire U.S. Code” would be subject to the compelling interest test was a decision the congress made in both 1993, when RFRA passed the House unanimously and the senate 97-3, and 2000 when the congress unanimously strengthened the law and is explicitly contained within the text of RFRA. Cf., 42 USC 2000bb-3.

Justice Scalia’s Smith quote was a valid concern before RFRA was adopted but no longer is, due to the “least restrictive means” test which was not available for consideration in that case. As such, it has no relevance in Justice Kagan’s consideration of this case.

Justice Kagan also errs substantially when She claims “You cannot test the sincerity of religion” is part of the Objector’s argument. At no point has Any of the Objectors in these cases made such a claim, Mr. Clement did not make such a claim, and the text of RFRA itself would not support such a claim.

Given the apparent ill-preparedness of Her Honor, perhaps She was not the best choice for the President to nominate?

The problem is in their interpretation of the law. In no sense should it apply to the rights or women to used legal birth control. Not their CEO/prophet’s opinion, but theirs. The part of the test in RFRA that this FAILS completely, is in the simple proposition that the employer’s religion should decide what treatment is the “right” one. The right is the employee’s. There is no right to a tax exemption for your particular principles. Quakers pay the same income tax as anyone else, even though they are conscientious objectors. They are not doctors. What they are refusing to pay for is only an “abortifacient” if you take a very conservative view of when the “personhood” of the fused cell from the first minutes of interaction. Well, if you go completely conservative, you couldn’t have any contraception. Here the federal government has done its job, consulted with the doctors as to what should be offered to give all women the choice. It is Hobby Lobby that refuses to, and the musical fascists on the court say, absolutely, have a tax break – thus, making the court come down on the side of a particular religious belief. Alito said, no, this will not apply to Scientologists, so they must pay for mental treatment. “Establishment clause.” Can’t do it. You can, as a woman, go off birth control, only use herbs from South America, or use what 85% of the rest of America uses: the list of drugs on the government’s list. The idea that a billionaire can decide what’s available based on a frankly, subjective belief, and apply that as a ‘principle’ to women of other religions, and other consciousnesses, is corrosive to the first amendment, not a case of “religious liberty.”