ConfirmThem

By AndrewHyman Posted in SCOTUS — Comments () / Email this page » / Leave a comment »

Notre Dame law professor Richard W. Garnett has a post at Bench Memos today, titled “Michael McConnell and the Religion Clause Mainstream.‿ Garnett argues that the Supreme Court’s recent opinion in Cutter v. Wilkinson vindicates McConnell’s views, and demonstrates that he is in the “mainstream.‿ I disagree.

Cutter was an Establishment Clause case, rather than a Free Exercise Clause case. It’s the Free Exercise Clause where McConnell has views that are most unorthodox. As I discussed here, McConnell testified at his confirmation hearing that the Free Exercise Clause should be used to legalize polygamy, and he has also written that the Free Exercise Clause should be used to protect a limited right to abortion.

Judge McConnell’s view is that a statute that does not target or discriminate against religion, but that instead treats everyone equally, can nevertheless run afoul of the Free Exercise Clause. Thus, Professor Marci Hamilton was correct when she wrote that, "Judge Michael McConnell is ‘highly critical of current Free Exercise doctrine.'" Professor Garnett is reading too much into the recent Cutter decision, and is letting Judge McConnell off too easily.