A cunning stunt

Cunning Stunts is the title of a fictitious play in Vladimir Nabokov’s late novella, Transparent Things. It’s the only thing I remember about that book, but it came to mind reading the New York Times editorial on the 12 lawsuits brought by 43 Catholic institutions seeking to invalidate the “preventive services” mandate promulgated (and to be promulgated) under Obamacare. The Times opines regarding the filing of the 12 lawsuits: “It was a dramatic stunt, full of indignation but built on air.” According to the Times, the lawsuits lack even colorable claims either under the Religious Freedom Restoration Act or the Free Exercise clause of the First Amendment. (The complaint filed in the Notre Dame v. Sebelius lawsuit is accessible online here.)

The editorial is not itself a stunt, but it is something of a joke. I hope the person who wrote it isn’t a lawyer. The Times expends remarkably little analysis, for example, on the “compelling interest” necessary to support a law that substantially burdens religious exercise by the least restrictive means under RFRA. Here is the compelling interest as set forth by the Times: “The new contraceptive policy does that by promoting women’s health and autonomy.” Well, okay.

Actually, not okay. Former Tenth Circuit Judge (now Stanford University Law Professor) Michael McConnell is one of the preeminent scholars of the the Free Exercise and Establishment clauses of the First Amendment. He would give the Times editorial a failing grade. I urge you to read Professor McConnell’s analysis in the linked post, or listen to it in the video below.

Compare Professor McConnell’s analysis with that of the Times editorial and I think you will find the characterization of the editorial as something of a joke to be fair. Like most jokes, it even comes with a punch line: “This is a clear partisan play. The real threat to religious liberty comes from the effort to impose one church’s doctrine on everyone.” While entirely lacking in wit, that is funny.

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