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McCarthy Komedy Klassics


Stop it, you’re killing me:

The federal courts are being reshaped by the Obama presidency, thanks to the disinclination of senate Republicans to block appointees.

If by “disinclination” you mean “more willing to block appointees than any Congress in history,” then yes.

Compounding the comedy, I also enjoyed McCarthy’s evidence for what radical judicial activists Obama’s appointees are: “I’m confident that the vast majority of Obama judges, maybe even all of them, would have no trouble holding that the HHS mandate (a) does not establish the Church of Obama as the state religion, and (b) being a neutral law of general application (i.e., it does not explicitly target religion in the text and applies to everyone equally), does not violate the First Amendment’s free-exercise clause.” Indeed they wouldn’t! Of course, at this point it seems worth noting that exactly the same thing would be true of judges that Republican Presidents would appoint. Oregon v. Smith, under which a free exercise claim against the regulation would be not merely certain to fail but frivolous, was written by known Trotskyite Antonin Scalia and joined by his comrade Chairman William Rehnquist. Although this is also beside the point — I think Smith was right, but I also think that the new regulation would easily satisfy the Sherbert test, not least because no individual’s rights are actually being burdened. Not only in the sense that very few Catholics adhere to the church’s doctrine on contraception, but because the mandate doesn’t actually require anybody to use contraception contrary to their religious beliefs. (If the argument is based an alleged subsidy, well, I’ll take that seriously as soon as Quakers are exempt from federal income tax because their tax dollars partially go to fund the military.)

It also seems worth noting that under McCarthy’s novel theory that neutral laws cannot in any way burden religious belief, Reynolds v. United States was clearly wrong. Jeez, and I thought it was same-sex marriage that was leading us on the slippery slope to legalized bigamy…

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