I agree very much with Tom on this point. In most controversies, both
sides are acting in ways that could plausibly be labeled as "divisive."
Government religious speech may be seen as "divisive," because it may alienate
members of other religious groups; but prohibitions on such speech, or
litigation seeking such prohibition, may be as divisive or more so. A
pro-Hobby-Lobby decision might be divisive, but an anti-Hobby-Lobby decision
might be divisive. Indeed, academic criticism of a pro-Hobby-Lobby decision
(or an anti-Hobby-Lobby decision) might be divisive -- and so was the
implementation of the mandate without a broad religious exemption, as Tom
points out. The Employment Division v. Smith regime can be seen as divisive --
but the RFRA regime, or the Sherbert regime, which makes controversial
judicially implemented religious accommodations possible, can apparently be
divisive, too.
Indeed, in my experience, most people -- I speak generally here, and
not with a focus on this list -- can easily see the potential "divisiveness" of
decisions they dislike on substantive grounds, but don't even notice the
divisiveness of decisions they think are sound. After all, if one thinks a
decision is sound, it's easy to view those who disagree as just unreasonable,
so that their feelings of alienation don't really count (since they deserved to
lose, and are now just being sore losers).
Of course,
Eugene
Tom Berg writes:
> I get those arguments, but they don't really seem to rest on a ruling for
> Hobby
> Lobby being "divisive"--they rest on it being (assertedly) substantively
> wrong.
> One could just as easily charge the Obama administration with being "divisive"
> (undermining "harmony," to use Jon's term) by adopting the mandate in the
> first
> place. (See Rick Garnett's piece on why arguments about divisiveness should do
> only very limited work in religion cases.)
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