The Progressive Free Train Clause

When Justice Kennedy reigned supreme, advocates on either side needed to body arguments to seem to the swing vote’s proclivities. Combine slightly federalism, sprinkle some dignity, steadiness all the pieces out, and BAM! You bought a slim, incoherent 5-4 opinion in your favor. Fortunately, these days are lengthy gone. However now, there’s a new recreation on the town: the best way to win is non secular liberty. And progressives have turned to the free train clause.

Exhibit A is abortion. Earlier than Dobbs even dropped, members of progressive faiths argued that the Free Train Clause, and state RFRAs require exemptions to abortion restrictions. Certainly, Marci Hamilton, who has lengthy assailed RFRA, has realized to cease worrying and love the substantial burden take a look at. If there may be hope to steer a conservative Courtroom to guard abortion, it should be based mostly on non secular liberty.

Exhibit B is affirmative motion. Yesterday, a bunch of Catholic universities filed an amicus temporary within the Harvard and UNC circumstances. The temporary, authored partly by Kathleen Sullivan, argues that the Free Train Clause helps a non secular liberty declare to contemplate race in admissions.

For Catholic schools and universities like amici specifically, the Free Train Clause provides a further constitutional dimension to the compelling curiosity in racial range as one issue amongst many in admissions. Amici‘s foundational Catholic values and teachings inform their dedication to provide worth to the id of the entire particular person in admissions and to compose a scholar physique that can, after commencement, promote the Catholic mission of the widespread good and repair to others, particularly the poor and underserved.

Widespread good!? Did Vermeule ghostwrite this temporary? That has to get 5 votes, proper? Who knew that the Free Train Clause and RFRA assist such progressive outcomes? Actually Roe and Grutter ought to have been Free Train Clause cases–so far more elegant. The Due Course of Clause and Equal Safety Clause can take a backseat to non secular liberty.

I anticipate a 3rd class to be environmentalism. Teams will argue they’ve a non secular liberty curiosity in pristine nature, clear air, endangered species, and so forth. The APA is barely the place to begin. RFRA would be the backstop.

In case you sense some sarcasm in my tone, you are very perceptive. I fear that these claims will irreparably set again the non secular liberty motion. It took three many years of cautious work to maneuver the ball from Smith to Fulton. However lower than two years after Justice Ginsburg’s demise, litigants are ready to gerrymander the Free Train Clause and RFRA to suit each aspect of the progressive agenda.