| By MARCI HAMILTON |
| Thursday, Aug. 7, 2008 |
Recently, Judge Michael McConnell, a George W. Bush appointee, issued a very significant opinion for the United States Court of Appeals for the Tenth Circuit interpreting the Constitution’s Religion Clauses. The opinion is revealing as it takes the Supreme Court’s recent hostility to the separation of church and state in Establishment Clause cases and further spins the logic.
When McConnell was a law professor, he advocated the concept of “mandatory accommodation.” In a Harvard Law Review article, McConnell explained his theory: It holds that the government must, in the vast majority of circumstances, sacrifice the public interest to the claims of religious individuals or organizations when they challenge generally-applicable laws.
The historical arguments McConnell made have, since then, been soundly discredited by others, including Professor Philip Hamburger of Columbia University School of Law. Moreover, the “mandatory accommodation” theory was rightly and soundly rejected by the Supreme Court’s 1990 decision in Employment Div. v Smith. There, Native American Church members who were drug counselors sought to use peyote in religious ceremonies and obtain unemployment compensation even though the use violated state drug laws. The Court said that their religious motivation provided no defense to the fact that such conduct broke a law that, rather than singling them out, applied to everyone. McConnell’s attitude of entitlement to religiously-motivated conduct that violates the law is not terribly distant from the holding in Colorado Christian University v. Weaver that a pervasively sectarian school is entitled to state scholarship funds without concern for government support of religious belief and mission. In fact, the decision explicitly collapses the Establishment, Free Exercise, and Equal Protection Clauses into a single principle: “equality.”
***
Read entire article here.
