Posted on 04/06/2015 9:47:51 AM PDT by SeekAndFind
In a challenging field of competitors, Fox News Channel’s Andrew Napolitano has a strong entry for the most laughable legal analysis of the Indiana religious-freedom law. In an April Fool’s Day op-ed that he evidently means to be taken seriously, Napolitano argues that state Religious Freedom Restoration Act laws are unconstitutional.
Napolitano’s core claim is that the Supreme Court, in its 1997 ruling in Boerne v. Flores, ruled that the 1993 federal Religious Freedom Restoration Act is unconstitutional. In Boerne the Court ruled that Congress lacked the constitutional power to apply the federal RFRA against the states. Napolitano accurately summarizes the Court’s ruling but evidently misunderstands the Court to have invalidated the federal RFRA in its entirety. But the federal RFRA of course remains fully in force against the federal government. Did Napolitano somehow sleep through the Hobby Lobby ruling and all the RFRA-based litigation against the HHS mandate?
More importantly, Napolitano doesn’t understand that nothing in the logic of Boerne prevents states from providing their own protections for religious liberty, whether through state RFRAs or other means.
Napolitano contends that the Indiana RFRA would require judges to “determin[e] the centrality and sincerity of a person’s claimed religious practices to the core teachings of his religion,” and that such an inquiry is “unknown in American jurisprudence … and prohibited by the Free Exercise Clause, which the courts have held bars such judicial inquiries.” But he’s wrong, for different reasons, on both “centrality” and “sincerity.”
Contra Napolitano, the Indiana RFRA does not require an inquiry into the centrality of a person’s “claimed religious practices to the core teachings of his religion.” Its definition of “exercise of religion” (exactly like the federal RFRA and most if not all state RFRAs) states that the term “includes any exercise of religion, whether or not compelled by, or central to, a system of religious belief.” (Emphasis added.)
As for sincerity: Yes, RFRA laws do call for an inquiry into the sincerity of a religious believer’s claimed belief. Far from being “unknown in American jurisprudence,” this inquiry is also a necessary and longstanding part of Free Exercise jurisprudence. Whether under RFRA laws or the Free Exercise clause, courts have managed the inquiry by being very deferential—by rejecting only claims that are (as the Supreme Court stated in Thomas v. Review Board (1981)) “so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause” or that the evidence otherwise clearly shows to be insincere.
Napolitano also asserts that the (originally enacted version of the) Indiana RFRA, if it were “an affirmative attempt to provide a lawful basis for [sexual-orientation] discrimination,” would “surely run afoul” of the Court’s 1996 ruling in Romer v. Evans. But the provision challenged in Romer was a state constitutional amendment that would, in the Court’s characterization, “prohibit all legislative, executive or judicial action at any level of state or local government designed to protect the named class, a class we shall refer to as homosexual persons or gays and lesbians.”
The Indiana RFRA law is an ordinary statute, not a constitutional provision, and it doesn’t prohibit any governmental action to protect gays and lesbians. So the idea that Romer “surely” would apply is absurd.
In 2011, the National Law Journal named Mr. Whelan among its “Champions and Visionaries” in the practice of law in D.C. The National Law Journal praised Mr. Whelan for “pioneer[ing] the field of legal blogging” and for offering “commentary [that] infuses national debates over judicial nominees, Supreme Court ethics and appellate court decisions—so much so that, when a Senate Republican cites outside research into the record of an Obama nominee, it’s more likely than not that the handiwork is Whelan’s.”
Mr. Whelan, a lawyer and a former law clerk to Supreme Court Justice Antonin Scalia, has served in positions of responsibility in all three branches of the federal government. From just before the terrorist attacks of September 11, 2001, until joining EPPC in 2004, Mr. Whelan was the Principal Deputy Assistant Attorney General for the Office of Legal Counsel in the U.S. Department of Justice. In that capacity, he advised the White House Counsel’s Office, the Attorney General and other senior DOJ officials, and Departments and agencies throughout the executive branch on difficult and sensitive legal questions. Mr. Whelan previously served on Capitol Hill as General Counsel to the U.S. Senate Committee on the Judiciary. In addition to clerking for Justice Scalia, he was a law clerk to Judge J. Clifford Wallace of the U.S. Court of Appeals for the Ninth Circuit.
In 1981 Mr. Whelan graduated with honors from Harvard College and was inducted into Phi Beta Kappa. He received his J.D. magna cum laude in 1985 from Harvard Law School, where he was a member of the Board of Editors of the Harvard Law Review.
Napolitano is a libertarian. He believes the U. S. shouldn’t have borders. I heard him say that with my own ears. He can shove it for all I care.
Ding, ding, ding, ding! We have a winner!
When the Judge is good he is GOOD! When he is bad, he is BAD BAD BAD....
One point is if the Constitution was being followed we wouldn’t NEED to have to pass these religious freedom laws.
The reason we NEED the laws protecting religious freedom is a breakdown of the rule of law and the culture. It feels like we are applying band-aids to the leaking and cracked hoover dam....
” Napolitano is a libertarian. He believes the U. S. shouldn’t have borders.”
Only a psycho, or a libertarian would make a statement like this.
Precisely.
Napolitano has been drinking too much of the kool-aid it sounds like
Yep
>> ” Napolitano is a libertarian. He believes the U. S. shouldn’t have borders.”
>
> Only a psycho, or a libertarian would make a statement like this.
It’s also an attempt to paint libertarians with a bad brush, ignoring the large number of libertarians who do believe in national sovereignty, much like certain posters like to do with abortion, claiming that the libertarian-party’s web-page platform-planks is indicative of libertarians as a whole ignoring such things as Libertarians for Life.
[ One point is if the Constitution was being followed we wouldn’t NEED to have to pass these religious freedom laws.
Precisely.]
We have to many damned laws the way it is, because people keep wanting to re-interpret the consitution to meet THEIR ENDS, and the Executive, Judicial and Legislative Rotting from within is one of the main forces driving this trend over the l past 100 years.
I do believe Naplolitano missed the boat on his analysisn of the Indiana RFRA. But he wasn’t alone. Most of the talking heads on TV this Sunday sounded like they hadn’t read the law as well.
They don’t treat real law in New Jersey
He is as real as the color of his hair.
A libertarian pimp that has no respect of any view other than his own.
Pigmeat Markham was the first to parody " Here come da judge" way back in 1968.
Yep...I voted for Harry Browne (RIP) twice, in 1996 & 2000, & he was pro-life, IIRC. I wouldn’t have voted for him if I had proof that he was pro-abortion.
A reminder that we can not trust Liberal-tarians ever.
“It’s also an attempt to paint libertarians with a bad brush”
I plead guilty of one count of overdoing it, but right now I have a particular FReepertarian following me around posting to me because I don’t believe in legalizing ALL drugs. I know there are many libertarians who are against open borders, but there are a too many who want every vice legalized, and I don’t buy this.
It's ok; I'm sure all of us get worked up from time to time.
> but right now I have a particular FReepertarian following me around posting to me because I don’t believe in legalizing ALL drugs.
Hm, that's odd.
I know there are many libertarians who are against open borders, but there are a too many who want every vice legalized, and I don’t buy this.
I tend to align with them more often than not WRT federal government, simply because the Constitution prohibits most of what the federal government does/is.
There's a disturbingly large contingent of conservatives
willing to sacrifice constitutional limits when it aligns with their particular ideals [supporting the patently contraconstitutional War on Drugs, for example].
Virtually all of the people I've read on it seem to be wholly ignorant of the state's own constitution:
Article 1
Section 2. Right to worship
All people shall be secured in the natural right to worship ALMIGHTY GOD, according to the dictates of their own consciences.
Section 3. Freedom of religious opinions
No law shall, in any case whatever, control the free exercise and enjoyment of religious opinions, or interfere with the rights of conscience.
Section 4. Freedom of religion
No preference shall be given, by law, to any creed, religious society, or mode of worship; and no person shall be compelled to attend, erect, or support, any place of worship, or to maintain any ministry, against his consent.
Nap is also a homosexual, so of course he is against laws that restore our rights not to accept homosexuality.
I don’t believe the choice to legalize drugs or other vices belongs to the Feral Govt. I am a states rights guy. Fed Gov is 10 times the size it needs to be to function.IMHO, under Obama, it has become a terrorist organization.
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