What Religious Liberty Really Looks Like

I just read Linda Greenhouse's piece about how the Court is shaping up in the wake of Justice Scalia's death, and something in it caught my eye. She mentions a case, Ben-Levi v. Brown, in which Justice Samuel Alito wrote a dissent from the denial of certiorari, a highly unusual move and one that Greenhouse couldn't recall ever seeing Justice Alito make. That case concerned a prisoner's religious liberty claim: he wanted to meet up with fellow Jewish inmates for religious study and/or worship (there was some dispute about which one, and it might matter), but the state wouldn't let him, because there were only two other Jewish inmates. You might think that shouldn't matter--and you would be right!--but it mattered because the state had apparently been informed by a rabbi that collective Jewish worship requires the presence of ten Jews in order to form a minyan. Hence, the state's rules allowed Jewish inmates to meet up for worship so long as there were at least ten of them. Alito, in his dissent from the denial of cert, thought this was ridiculous: what mattered isn't what some rabbi says, but what Mr. Ben-Levi himself believed.

And... he's right about that. I think Ben-Levi should have won that case, and easily so. I don't even necessarily even need to get the Free Exercise Clause involved here: this policy seems to me to violate the Establishment Clause pretty clearly. One prong of the traditional test under that Clause is that government policy must not create "entanglement" with religion. Basically the idea is that we really, really don't want the government dictating religious doctrines. This is the aspect of the Establishment Clause that's meant to protect religion from government as much as the reverse. And so I would say, the government has absolutely no business enforcing the minyan rules. Maybe they could simply not allow for group study/worship by Jewish prisoners, or maybe in appropriate cases they could limit the right to participate in those groups for individual prisoners whose poor behavior merits it. But if they're gonna allow the study at all, they absolutely cannot base their rules about when it is or is not permissible based on some view of what constitutes the correct interpretation of the religion in question; that's flatly impermissible.

And it's totally different from the other "religious liberty" case this term, and all the high-profile one of the past few years. Greenhouse speculates that Alito may have been "practicing" for the upcoming blockbuster case Zubik v. Burwell, where a bunch of religious groups and/or companies (because apparently that's a thing now) are complaining about the government's new rule saying that they don't have to provide insurance that covers contraception to their employees if they don't want to, they just have to let the government know that they object and then the government will provide that coverage separately. This, you see, still makes them culpable for whatever sins they think the contraception will perpetrate, according to their own religious convictions.

Spot the difference? It's simple: whereas Ben-Levi (and presumably his fellow Jewish inmates) just wants to practice his own religion his own way, these companies are fairly explicitly claiming a religious right to obstruct others' behavior that violates their own beliefs. I deny wholeheartedly that the latter has anything to do with "religious liberty." But to anyone who thinks this means I don't believe in religious liberty, that's wrong: I do support real religious liberty claims, like Ben-Levi's.

UPDATE: Attempts to Limit Hobby Lobby Turn Out To Be Gibberish

So my previous post was about how the way Justice Alito distinguishes the contraceptive mandate from other potential health insurance tells us that the real point of his opinion is that he doesn't think it's that important to provide universal access to contraception. Apparently that's not entirely correct. Apparently the Court assumed that the government interest in the case was compelling, and based its decision on the whole "least restrictive means" thing. But this is a problem. RFRA violations are those laws which substantially burden religion and which are not the least restrictive means to further a compelling government interest. Thus, if one thing is a RFRA violation and another isn't, then they must differ in one of three ways: either one of them substantially burdens religion and the other doesn't, or one of them is in furtherance of a compelling interest and the other isn't, or one of them is the least restrictive means to furthering such an interest and the other isn't. It could be all of those three, but it's gotta be at least one of 'em. But if Alito was stipulating the strength of the government's interest, then that can't be the difference. The fact that, in the passage quoted in the previous post, he discussed not the question of the burden on religion but of the government's interest suggests he thinks that vaccine mandates do substantially burden religion, so that can't be the difference. So the difference must be the least-restrictive-means thing, right? Well, wrong. Because as Justice Kennedy points out, the government could just pay for this part itself. That would be less burdensome on the Green family's religion. So would establishing an all-out single payer system where the government just does all of this stuff directly and leaves the employers out of it. And both of those are gonna be there as less restrictive alternatives for all of these mandates, aren't they? Like, the logic is in fact exactly the same, Alito's protestations to the contrary notwithstanding.

So.... it looks like the "legal reasoning" behind limiting this to contraception is basically just bullshit. There is no reasoning. It's narrow because Alito wants it to be narrow, as do Roberts, Kennedy, Scalia, and Thomas. Maybe because they think Congress might actually amend RFRA or something if they issued a broader decision? I dunno. But it seems pretty likely that the only reason why they're treating contraception differently from all other kinds of potential health insurance mandates is that it's suddenly become politically controversial, and/or that they're five old Catholic dudes who have been taught from birth to believe that contraception is sinful. Whatever it is, it ain't law.