Friday, August 22, 2003

Yes, dumbass, this can be legal.

Over at the Corner, when they're not grumbling about Reichen and Chip winning The Amazing Race 4, they're bitching about Gray Davis signing a law that would forbid the sale of a nonprofit hospital on the condition that the buyer comply with the seller's demands of what services the hospital should provide. This is, apparently, anti-Catholic.

For those not familiar with the righty definition of anti-Catholic, here it is: when the position of a Catholic is consistent with that of righty politics, it is anti-Catholic to disfavor the position or the righty Catholic who holds it. Hence, it is anti-Catholic to oppose the confirmation of Catholic William Pryor for his opposition to gay rights or abortion rights. Here, it is anti-Catholic to oppose the conditions above because Catholic hospitals employ them to ensure that the buyer will not provide abortion or contraceptive services.

Note that this definition does not forbid any criticism of Catholics. In fact, it demands that one demonize lefty Catholics for nothing more than having the audacity to identify as Catholic. Says Rod Dreher: "Gray Davis assures the public that he's a good Catholic. He's something, all right, but I'm not sure it's printable on a fambly blog." Kathryn Jean Lopez alludes to similar criticism of Ted Kennedy and Dick Durbin.

Not what I'd consider a sensible definition of anti-Catholic, but there it is.

Otherwise, Dreher questions "how can this be legal? Isn't there a First Amendment problem here?" Now, I'm no lawyer, but I'd say no. Unlike the righties, the Supreme Court doesn't consider any government action that might affect a believer to be an abrogation of the believer's rights. For example, in Employment Division v. Smith,

Respondents Smith and Black were fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. Their applications for unemployment compensation were denied by the State of Oregon under a state law disqualifying employees discharged for work-related "misconduct."

Was this unconstitutional? Nope.

Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.

Given that standard, I'd say Catholic hospitals - or any hospitals that would like to require that their buyers deny services to their patients - are shit out of luck. Thankfully, patients seeking those services are not.