THE BLOG
03/26/2014 03:30 pm ET | Updated May 25, 2014

Of Overstated Claims of Religious Freedom and Judicial Integrity: Chief Justice John Roberts

The Roberts Court has been characterized as pro-business. It is, but this is not surprising in a country where 99 percent of the wealth is held by a tiny fraction of the people and where the Supreme Court of the United States has consistently mistaken corporations for people and awarded them first amendment rights.

To the reader I must disclose that I have an interest in seeing these matters reversed as I am presently campaigning as an independent for a congressional seat largely for the purpose of demonstrating that an average income person with a dedication to the principles of the Constitution can serve in public office even without raising obscenely large sums. Betting odds are that this average person will not succeed and that the two parties will do their usual spending and squeeze out this independent from the general ballot. I am placing my bet with the common sense of the people. The people of Ventura County, Calif. work hard and they we reward those who do likewise. If we succeed in the coming months, we will be making history as there is not a single independent in the House of Representatives.

With that disclosure made, however, let me suggest an assessment of the recent religion clause cases taken up by the Roberts court. I believe they indicate something quite remarkable about the service of the Chief Justice -- indeed, something quite praiseworthy. What is that? Namely, the resistance of the Chief Justice to the bankrolling of conservative ideology which he believes in favor of outcomes enhancing the integrity of the Supreme Court as an institution. John Roberts's performance in this is so noteworthy and exceptional that it deserves to be contrasted with the approach taken by associate Justice Antonin Scalia who, it would seem, prefers his ideology even over his own precedent and/or originalism.

Over lunch, shortly following his confirmation, the Chief Justice inquired of this academic scholar of the law what would be an appropriate measure by which to know whether his service was of high quality consistent with the historical position of say a John Marshall who for many lawyers constitutional litigants is the very epitome of excellence in service to the court both by longevity and the extent to which it secured the courts legitimacy and power of judicial review.

Pro-business or not, John Roberts has consistently placed the integrity of the Supreme Court over his previous pre-judicial conservative ideology. Exhibit A known to most of my readers would be how it is that the Chief Justice found a way to sustain constitutionality of the Affordable Care Act against the right wing conservative claim that Congress lacked constitutional authority to pass the measure. It will be recalled that the Chief Justice shared the misgivings of his fellow conservatives that the scope of the commerce power had been exceeded by legislation that mandated participation in the marketplace by those who had not shown any inclination to undertake such participation on their own. Yet, Roberts did not rest with that conservative conclusion; instead, his study of the matter led him to conclude that Congress had ample authority to pass health care reform as an aspect of its taxing and spending power.

There is evidence that Roberts' open-mindedness resulted in an opinion drafted by Justice Scalia as a majority opinion into a dissent. While I presume that the progressive supporters of the President in matters of universal health care, and I support the President in this wholeheartedly, understand the magnitude of ruling on this ruling to the achievement of the president against one's fellow conservative travelers. Chief Justice or not, there is a certain ostracism that flows from ruling against the Orthodox, Koch financed point of view. Thank goodness for judicial tenure! during good behavior.

Finding the taxing and spending power to sustain the Affordable Care Act, Roberts further solidified his reputation for reasoned prudence by articulating the limits on the authorities he relied upon. In particular, spending conditions must be drawn consistently with the Bill of Rights.

The path taken by the Chief Justice to sustain the Presidents's health care initiative was challenged by right and left alike, but for different ideological reasons. The Chief Justice further articulated where coercion might vitiate a spending power condition. in so doing, Roberts established an important benchmark for human freedom, and this aspect of his opinion will pay dividends in the years ahead to control government power over our lives.

Recently, questions have been raised as to whether or not religious freedom in the United States is in jeopardy. It has been popularly proclaimed to be such, again most notably by conservatives, because of the contraceptive mandate that is part of the Affordable Care Act.

The Roberts court has had an opportunity to resolve a number of prickly religion issues, but has not been quick to take them up. In some of this work , the Chief Justice has taken up only the periphery of the subject matter. In some ways, the Chief Justice has been unneeded because his mentor and predecessor William H Rehnquist, had navigated the acceptance of school vouchers at least if they are allocated to parents and/or students to not raise any meaningful establishment clause issue. Other establishment clause cases such as those dealing with religious symbols and public references are really cases at the margin, too, including a case argued earlier this year on whether or not the applied favoritism for Christian prayer guests at a local town hall was constitutionally problematic. The Court had earlier decided that legislative prayer was not of great concern in terms of improper endorsement or establishment of faith and one anticipates from the oral argument that that doctrine most substantially change.

The difficult case this term was not the prayer case or a case dealing with symbols such as the 10 Commandments it was instead a case dealing with the free exercise of religion. Here, Roberts's ability to preserve the integrity of the Court again runs against his own conservative ideology, and to the extent that his questions indicates that he is willing, yet again, to set aside that ideology in favor of the rule of law is most admirable.

The value of this approach can be seen more clearly in a comparison to the approach of fellow conservative jurist, Antonin Scalia. Of course, constitutional theory and religion has had some peculiar twists and turns. Yet, it is with some irony that Antonin Scalia, a devout Catholic, is perceived to have weakened the free exercise of religion some years ago in an opinion that in essence established that if the government's actions were not intended to disable or disfavor religion but instead were the impact of a generally applicable neutral statute that led to some religious disadvantage that the religion should not be heard to complain. So for example, if a zoning law characterized a church as an historic structure under generally applicable rules for determining such landmarks, the local archbishop could not be heard to complain that his freedom of religion had been singled out for disfavor. The advantage of this position articulated by Justice Scalia was that it took Federal judges out of the business of weighing the sincerity or the centrality of religious belief against the importance of the state interest or government's interests, whether the case of the historic church, the maintenance landmarks or even the importance of a particular church to conduct of the religious instructions compared to the aesthetic beauty of the church for those admiring it is a structure from afar.

The Scalia opinion, as sound as it was for keeping judges out of theological questions or at least out of balancing those interests against other public policy objectives, a matter more appropriate for the legislature, led to its attempted statutory reversal. The statute, the Religious Freedom Restoration Act ( (RFRA) ostensibly tried to reverse the Supreme Court, but as any seventh-grade civics student would know that's not the hierarchy of matters in our constitutional document. No surprise, the Supreme Court ruled that Congress lacked the authority to impose a different standard of free exercise of religion than had been articulated by the justices themselves. Of course, if Congress wants to abide by a stricter or more demanding protection of free exercise of religion in the Constitution requires, there is nothing stopping them from applying that higher principle to themselves simply a matter of internal governance.

True to his conservative inclination toward matters of faith and its greater protection, Chief Justice Roberts in earlier opinion both narrowed the standing of taxpayers to object to minor displays or references to religion in public places thereby again keeping the court out of such matters and leaving the judgment as to what is and is not appropriate for reference to the people's representatives. So too, the Chief Justice has himself written opinions that articulate the substantial deference that religious entities should be given in the hiring of their own personnel be they styled his ministers priests rabbis grandma's or something else. This ministerial exemption is wide berth to religion to make its own way and to state its own doctrine unaffected by public regulation, even regulation that has noble purpose of securing civil rights protection against those who discriminate on the basis of age or disability even race and gender. In this past week however, the so-called Hobby Lobby case, a case taking its name from a private employer who runs a for-profit business that sells hobby kits, the Court has been confronted with a religious claim of a for-profit private employer who insist that he's entitled to exemption from general laws, including the Affordable Care Act which mandates contraceptive coverage.

Will the Supreme Court of the United States under John Roberts, afford for-profit private employers the power to nullify the general laws as they apply to the health needs of their employees on religious grounds?

It should not... Unknown to most churchmen, this is a false claim of religious freedom and should not be observed.

To allow religious freedom to include private for-profit corporations is the beginning of the cheapening of religious freedom and its greater lack of protection. Here it is useful to compare Justice Scalia again with the Chief Justice. As noted earlier, Justice Scalia articulated the principal that generally applicable neutral laws don't single out religion for disfavor are acceptable so long as they have a reason to basis in any exemption needed there from should be sought in the legislative process. Given that commitment one would expect Justice Scalia to be quite skeptical of extending religious freedom to for-profit private corporations.

Yet, the difference between Scalia and Roberts now once more becomes manifest. Scalia in the willing service of his conservative friends and ideology will set aside his sound principle of judicial restraint in deference to the legislature articulated in Smith and expand the claim of religious freedom to include for-profit corporations. By contrast, it is reasonable to expect John Roberts will be far more skeptical of such a claim the ability to get to this point however is complicated.

Matters become somewhat complicated however. It is a commonplace admonition that constitutional questions are to be avoided in favor of statutory resolution. Here, the constitutional interpretation as articulated by Justice Scalia is more sound than the Religious Freedom Restoration Act (RFRA) that follows it. That is a particular complication for the Chief Justice because the general canon of interpretation in cases is to avoid constitutional questions in favor of resolving matters under a statute. Indeed most the questioning in the oral argument in Hobby Lobby focused on the words of the statute. But those words are much more troubling and entangling for the court in matters of religion than that which had been articulated by Justice Scalia has the sound interpretation of the free exercise clause in the Smith case. In particular, the religious freedom restoration act requires the court to evaluate whether there has been a substantial burden placed on religious beliefs or practice and whether the government has a compelling basis for the imposition of that substantial burden. There's plenty of compelling reasons why the government may believe that the provision of contraception without cost to women is compelling or advisable: the avoidance of disease, the reduction in the number of unwanted pregnancies and with it of course the greater avoidance of abortion. Yet, as a matter of institutional integrity the Chief Justice must surely be concerned that the statute which invites such inquiry on a case-by-case basis into whether or not a particular religious practice has been substantially burdened involves him and the Court in becoming minor theologians for purposes of evaluating centrality sincerity of police and other matters for which federal judges are real paired. In short, the Chief Justice will have to find a way, if he is to maintain the integrity of the bench, to reverse the normal scheme of operation -- that is, deciding the matter as a constitutional claim first rather than as a statutory determination.

While it was not argued or well-presented in the briefing materials either, one way for the Chief Justice to escape his dilemma would be to find that the Affordable Care Act is simply later in time than the religious freedom restoration act. While this chronology is not necessarily one that means that the earlier act has been repealed, there is reason to believe, given universal aspiration of the President and the he Congress that passes that an implied repeal of the earlier religious freedom restoration act could well have been the best assessment of congressional intent. At a minimum, there's no reason to assume as most of the advocates did in the case this week that RFRA continues to have validity at the federal level. True,the Court has stated in a separate case dealing with the enforcement of the federal drug laws that a pre-existing federal drug law would be held to the greater inquiry posed by RFRA, but again, that does not resolve what should be the outcome where the act in question -- here the healthcare law -- is subsequent in time.

The Roberts Court has thus far been a Court of integrity. Appropriately, the Roberts Court earlier affirmed the ability of a truly religious organization, such as a church or its immediate auxiliaries to select their own ministers or spiritual personnel. To now extend that same kind of latitude to for-profit private employers may be portrayed as the widening of human freedom in matters of religion, but it is hardly consistent with the recognition of how differently various religious societies resolve the complex moral claim made by the private for-profit employer here. Acknowledging one private, for profit employer's particular moral calculus, like that demanded by Hobby Lobby, would require as a principled matter that the government accept virtually any other claim for exemption from generally applicable law. As the questioning in the Court today suggested that could not possibly have been contemplated by the drafters of RFRA, nor was it noticed by the near unanimous Congress that passed it.

In the formation of any political community, every individual notion of freedom cannot be indulged. We come together for our mutual advantage and support, and it is the nature of democracy itself that we agree to abide by majority determinations. We set aside majority determination when the majority tramples clearly established understanding of human rights, as articulated in the Bill of Rights. We have no guarantee that our view will always be the majority view. We do have a guarantee that no part of the government will unthinkingly, without reasoned basis, use the general laws to set aside religious belief or practice.

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