Pounding the Table

This article is stunning either in its disingenuousness or its ignorance. Money quote:

So far in American history, our government has respected the freedom of individual conscience and of institutional integrity for all the many religious groups that shape our society. The government has not compelled them to perform or pay for what their faith tells them is immoral. That’s what we’ve meant by freedom of religion. That’s what we had believed was protected by the U.S. Constitution.

That has, simply, never been the law. As the Supreme Court stated as long ago as 1879:

Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices. Suppose one believed that human sacrifices were a necessary part of religious worship, would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband, would it be beyond the power of the civil government to prevent her carrying her belief into practice?

(Reynolds v. U.S., 98 U.S. 145. 166 (1879)).

For a little under 30 years, a handful of decisions carved out an exception to this general rule for actual religious practices which contravened generally applicable statutes, but which either involved parental control of their children's education or statutes which made exceptions for majority religions but not minority religions. These cases, which did not involve taxes or required insurance, were held not to apply to evenhandedly applied statutes that did not involve intrusion into the homes of religious believers by a majority led by Antonin Scalia in Employment Div. v. Smith, 494 U.S. 872 (1990). As Justice Scalia wrote:

They assert, in other words, that "prohibiting the free exercise [of religion]" includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning. It is no more necessary to regard the collection of a general tax, for example, as "prohibiting the free exercise [of religion]" by those citizens who believe support of organized government to be sinful, than it is to regard the same tax as "abridging the freedom . . . of the press" of those publishing companies that must pay the tax as a condition of staying in business. It is a permissible reading of the text, in the one case as in the other, to say that if prohibiting the exercise of religion (or burdening the activity of printing) is not the object of the tax, but merely the incidental effect of a generally applicable and otherwise valid provision, the First Amendment has not been offended. Our decisions reveal that the latter reading is the correct one. We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.

494 U.S. at 878-879. See also Hernandez v. Commissioner, 490 U.S. 680 (1989) (rejecting free exercise challenge to payment of income taxes alleged to make religious activities more difficult).

The Cardinal's analysis on the constitutional point is, simply, predicated on what may most charitably be called an error, but an error that is obvious to anyone who has taken more than a few minutes to review the jurisprudence; he has taken a very narrow "conscience exemption" applicable to very specific and personal decisions and tried to turn it into a general exemption from laws of which he disapproves.