Whoever this dlamming character is, and whatever reason he has decided to target me specifically, he appears to have a particular gift for making himself look foolish. After tilting at the windmill once and coming out looking quite silly, he's now back again with another set of distortions in this post about my post concerning Catholic Charities and gay adoptions. In it, he cites the following statement from me:
"Interestingly, the group decided not to ask for a religious exemption, which they can do under Massachusetts law."
He then cites the following from the Boston Globe article that I linked to, points which he thinks answers my argument, and declares me wrong:
# Two leaders of the group asked the governor for an exemption, who replied that he didn't have the authority to do so;
# The governor is planning to introduce legislation "to exempt religious organizations that provide adoption services from the state's antidiscrimination laws."
# The legislation is considered unlikely to pass.
To summarize, not only did the group ask, but there is no such exemption under current Massachusetts law. This isn't a small point, either - a good chunk of the article deals with it, which is why I was surprised when I happened upon Brayton's post. I don't think Brayton made this mistake intentionally, but I'm surprised and dismayed that he appears to be unable to fully read an article.
Now let's unpack these statements, compare them to reality, and see which of us lacks reading comprehension skills. First, note that I did not say that such a request for exemption would have succeeded, only that it is interesting that they didn't ask for one. I made the statement about Massachusetts law allowing an exemption in such cases not because of anything in the Boston Globe article but because of discussion on the ReligionLaw listserv concerning the question.
In particular, Doug Laycock, one of the top scholars in the nation on church/state matters, noted that the church did not necessarily have to surrender the case, they had several possible options that might have succeeded. Some of those options involved state law and some involved Federal law. At the Federal level, they could have invoked the protections of the Religious Freedom Restoration Act (RFRA), the same statute that recently led to a unanimous Supreme Court decision exempting hallucinogenic tea from the reach of the Controlled Substances Act.
The RFRA provides that when the courts examine an issue they must apply the strictest standard ("compelling state interest") when deciding whether a general purpose law should be applied in a situation that impinges on a free exercise claim. The RFRA is active not only at the Federal level, but more than a dozen states passed similar legislation after it was passed nationally. Massachusetts is not one of them, but only because prior state court rulings had already applied the highest standard of scrutiny in such cases.
Even before the RFRA was passed nationally, the Massachusetts courts had already ruled that they would apply the "compelling state interest" standard in such cases, contrary to the standards then employed by the Federal courts in rulings (specifically Smith v Oregon) that the RFRA was intended to overturn (and did, as the recent ruling shows). In 1994, in the case of Attorney General v. Desilets, the Massachusetts Supreme Judicial Court had declared that, despite Smith, they would continue to apply the stricter standards. Thus, Catholic Charities could have had a solid argument to make for a religious exemption, but they would likely have had to go to court to do it.
Now, let's look at the two reasons that dlamming cites as proof that I was wrong in suggesting that Massachusetts law allows the Church to ask for a religious exemption. The first is that they asked the governor, Mitt Romney, and were told that he could not grant such an exemption. That's true, but it doesn't invalidate my point at all. The fact that the governor doesn't have the unilateral authority to grant such an exemption doesn't mean that no such exemption could be given. As I explained above, it would likely have taken a judicial ruling to do so applying previous court precedent.
His second argument is that because the governor intended to submit a bill "to exempt religious organizations that provide adoption services from the state's antidiscrimination laws", and such a bill was unlikely to pass, this shows that such an exemption was not possible under current law. This is still false. Such a bill might make an exemption automatic in such circumstances, which it is not now, but this still doesn't mean that such an exemption wasn't possible under current state or federal law. I've spelled out the legal basis for such an exemption claim above.
The bottom line is that there is ample support both in statutory law at the Federal level and in judicial rulings at both the state and Federal levels for a plausible claim for exemption to be made in this case. Is it a winning claim? I don't know. But it's a plausible one and I find it interesting, as do several prominent legal scholars, that they did not try and pursue that option before giving in on this matter. And I would suggest to dlamming that in the future he read more carefully himself, and take the time to do a little research, before making accusations about my level of reading comprehension.
Update: I may have just figured out why dlamming has seen fit to target me with his poor reasoning skills. According to sitemeter, his site averages a whopping 8 hits per day. But after my link to him in the last couple hours, he's gotten about 8 times that many hits, almost all from my page.
Update #2: I just found out I was wrong about the Federal RFRA. I really should have known this already, but Doug Laycock informs me that the RLUIPA act amended the Federal RFRA in 2000 to apply it only to Federal statutes and policies. But he also pointed out that there is a second Massachusetts SJC ruling that applies the heightened RFRA standard to such matters in addition to the one I already cited, so my original point remains correct - they had a potential remedy in the state courts for getting a religious exemption from the law. I'm still interested in knowing whether they chose not to explore that option because they didn't think they would win it, or for some other reason.
If I call you bad names, will you send some traffic my way, too?
Only if you do so in a really illogical way, John. I don't think you're capable of that.