Justice Elena Kagan had a number of questions—as did Justice Sonya Sotomayor—in Tuesday’s oral arguments on Obamacare’s Contraceptive Mandate. Indeed, counsel for the mandate’s challengers, Paul Clement, wasn’t even allowed to get into his argument, so little were these Justices in a listening mode, but that’s for another post. Kagan had one “question,” though, which was very telling:
One religious group would opt out of this and one religious group would opt out of that, and everything would be piecemeal. Nothing would be uniform[.]
Yeah, and, Madam Justice? So what? Why must everything fit into a Liberal’s—or Big Government’s—Procrustean bed? Opting out is part of the Free Exercise Clause—it goes right to the heart of it. If things do get…piecemeal…where is the problem? Government convenience is not a reason to deviate from the Constitution on the bench—or to truncate liberty from anywhere.
If it isn’t government convenience, then the Liberal just seems terrified of the noisiness of republican democracy.