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.
Agreed.
Whoa! News to me! Thanks...I guess..
“Judge” Andrew Napolitano is a talking head, and no more a judge than I am.
Maybe he once was, like I was once a high school student; I don’t call myself that anymore, though.
Wow. Just lost a little respect for him. He is also pro the 14th amendment granting citizenship to anchor babies
If I need any judicial opinions I'll stick with the opinions of Judge Jeanine.
If I need any judicial opinions I'll stick with the opinions of Judge Jeanine.
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