“Religion freedom rolled back by SCOTUS” proclaims yesterday’s post
by Rod Dreher on the Supreme Court’s decision
in Christian Legal Society v. Martinez. Taking off from a post
by Wendy Kaminer over at the Atlantic, Dreher claims the court
“believes that it’s licit to protect other groups, while singling
traditional Christians out for special discrimination.”

That’s nonsense. What the court has done is decide that the Hastings Law
School’s “all comers” rule for providing support to student groups
applies to the “traditional Christians” who run the Christian Legal
Society. But what Dreher really needs to recognize is that the decision
has nothing whatsoever to do with religious freedom–because two decades
ago the court seriously truncated the ability of religious individuals
and groups to make Free Exercise claims.

I won’t repeat myself explaining this, except to say that the irony here is that it was
Justice Scalia and his conservative allies (plus John Paul Stevens) who
put in place the current standard that such claims cannot prevail
against “neutral laws of general applicability.” As the majority in Christian
Legal Society
makes clear, an “all comers” policy is neutral and
generally applicable. Dreher’s beef should be with Scalia & Co., who
denied traditional Christians and everybody else the ability to make
special claims on behalf of their religious views, in line with the way
the First Amendment singles out Free Exercise for special protection.

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