Scalia Was Right

Well, that’s a headline I never thought I’d write!

Not that I always disagreed with Antonin Scalia; he was pretty good on free speech, for example. But overall, I found his jurisprudence intellectually dishonest, and his “originalism” disingenuous–especially because he was smart enough to know it.

What makes the headline particularly ironic, is the fact that my initial reaction to the decision he authored in Employment Division v. Smith was that it was wrong. It was certainly widely criticized.

In that case, members of a Native American Church, who were counselors at a private drug rehabilitation clinic, were fired because they had used peyote–possession of which was a crime under Oregon law– as part of a religious ceremony.  The counselors filed a claim for unemployment compensation with the state, but the claim was denied because their dismissal was deemed work-related “misconduct.” The Oregon Courts of Appeals reversed, finding the denial an infringement of their religious liberty, and the Oregon Supreme Court agreed. The state then appealed to the Supreme Court, arguing that denying the unemployment benefits was proper because possession of peyote was a crime.

Scalia ruled that the denial of unemployment benefits was proper because the law against peyote use was a “law of general application.” That is, it hadn’t been passed as an effort to target Native American religious practices, but as part of a legislative effort to combat drug abuse generally. The fact that a law of general application inadvertently hindered a religious practice might be unfortunate, but that didn’t make its enforcement unconstitutional.

Because the law’s application in this case so obviously–and in the opinion of most people, unnecessarily– punished a longstanding religious ritual, the decision generated considerable outrage, and if memory serves, prompted passage of the Religious Freedom Restoration Act, requiring the Courts to apply a more rigorous judicial standard in such cases. (This was not the infamous Indiana version.)

On reflection, however, I came to the conclusion that Scalia was right.

Here’s the issue: When should “sincerely held religious beliefs” justify ignoring laws meant to protect or improve the citizenry? To take an obvious extreme, we have laws against murdering babies; should the ritual sacrifice of her newborn in accordance with a sincere religious belief exempt the parent from punishment?

If not, when should religious belief trump civil law?

We are once again having this debate, as a result of the tension between laws intended to ensure civic equality and religious dogmas that label certain others “sinners.”

The Washington Post recently reported on one such conflict.

The Supreme Court on Monday added a major case to its docket this fall to decide who prevails when a group’s religious beliefs conflict with a city’s attempt to eliminate discrimination.

The justices will take up a legal fight from Philadelphia, where city officials ended a contract to provide foster care services with Catholic Social Services because the agency said it would not accept applications from same-sex couples who want to take care of children. The case will be heard in the term that begins in October.

The Third District Court of Appeals ruled for the city, holding that it was not targeting the Catholic agency in enforcing its policy prohibiting the city from doing business with entities that discriminate.

The case is being seen as a major test of whether the Court will reconsider precedents, especially the precedent established in Employment Division v. Smith, to the effect that generally applicable laws that don’t intentionally target religious groups are constitutionally enforceable.

It will be interesting to see the reaction of those politicians and pundits who continue to laud Scalia for his convoluted opinions privileging religion as “tradition.”

But then, for all those who counted themselves Scalia fans, it was all and always about results–not consistency.


  1. Of course! No government entity should be contracting with any private party to provide some public service in which the beliefs of the private party are forced upon the public in such a way as to deny service or enhance such service.
    When one enters the arena of public contracts or licenses one has to park his or her discriminatory beliefs at the door or do not enter. That core rule of our society seems to be under attack by the most radical in our midst. What they do not want to accept is that a person is free to hold any damn hateful or crazy belief they so chose, but there is a price to be paid for such beliefs in a free society. They simply do not want to pay the price. “Follow the money!”

  2. “Here’s the issue: When should “sincerely held religious beliefs” justify ignoring laws meant to protect or improve the citizenry?”

    The use of peyote has been used in Native American religious ceremonies for centuries; long before the Supreme Court was a gleam in the founding father’s eyes. It is also self-induced; it is not required or forced on others such as many religions require or deny access to personal decisions regarding medical treatments and/or medications.

    It is also not a religious belief which is being forced on Americans by enacted laws at local, state and federal levels such as this country is seeing happen more and more often. Did Prohibition deny the drinking of wine while taking Communion? Convoluted opinions privileging religion is become the “norm” in the Trump/Pence temple, once known as our White House and the seat of our government. And as Theresa stated, “Follow the money!” Especially on the national level in our education systems now becoming voucher based support systems of religious schools.

  3. … And how about religion based Female Genital Mutilation?
    Is that a really good idea that the government needs to get behind?
    Is that a “religious freedom” that needs to be protected?
    Or can we just stay in 2020?

  4. Let me add…. Does anyone else find it mind boggling that Philadelphia would even consider contracting with the Catholic Church to provide child services? Really? That same Catholic Church that covered up child sexual abuse for decades all over the state of Pennsylvania? Really? Really?

  5. This will be an interesting test of the evangelical doctrine that states, “My religion is better and more religious than your religion.”

  6. I have a few Native American friends,local and mainly still reside on the rez. some in in the dakotas has allowed me to meet and converse with all sides of their age groups,and movements..over 30 plus years, ive visited pow wows,dances,the conversation with elders to young,and standing rocks,stand,against the pipeline. i have been invited to sweats,but my own body would never endure,im a cold weather person.i was invited to join,it will always remain as being invited to exchange,and talk,in a persoanal enviroment,with these people…they enlighten my life,as to see over the hill,before you crest it.and then enjoy the walk. simple anecdotes to everyday issues. their own religious practice,is their own,and its centuries old, peyote has nothing to do with getting high,its how they see back to their own ancestry,and the past,seeking direction to the future.. as with many religions,were often blind to its writings and teachings. ive met with many europeans over my lifetime,im amazed at times how they seem so simple,are so educated.the same with Native Americans. we stole their lands,killed their food supply,and drove them to a rez that only shows how vile we can be as humans, and then tell them their religious practices are not within our guidelines,,,we seriously need to walk some steps in their lives,to fully see what we have taken from them,and learn from the past,vote for the future..
    the nation has endorced Bernie, A great write up follows it..

  7. I think Scalia was one of the original Federalist Society members/founders. I simply cannot trust the “intellect” of that point of view, especially since Alito, Roberts, Thomas, Gorsuch and Kavanaugh also come from that ideological swamp.

    But to Sheila’s point: Even a blind hog will turn up an acorn now and then.

  8. Lester,

    Well, thanks. Let’s hear some unpolished jewels from you some time.

  9. We have to live as if we are in charge of us not anyone’s idea of a voice from beyond. Perhaps there was a time when we needed such a force to civilize us but it’s had more than enough time to teach us how and now we should be teaching each other as responsible adults.

  10. Lest you have forgotten this historic religious legal battle in Indianapolis:

    “The legal status of the Church of Cannabis’ use of marijuana in a jurisdiction where it is illegal, but the Religious Freedom Restoration Act holds, has been debated by legal experts. The Supreme Court case set forth certain criteria in U.S. v. Meyers that may or may not match fourteen criteria listed by the Internal Revenue Service in granting tax-exempt status.[12][13] Several days after its first service, the Church sued both the state of Indiana and the city of Indianapolis, claiming that the present marijuana laws infringed on their religious beliefs.[14] This case was dismissed on summary judgement[15] and again on appeal.”

    A recent Facebook post stated the Grand Pooh Bah, Bill Levin, attempted to run for governor but did not post his bid by the deadline.

  11. There are fundamentalist Christians who read the Bible literally and consider it to be the final revelation of God. I suspect there are fundamentalist Federalists who believe the authors of the constitution are the final word on the laws of our country. The constitution was written in the 18th century. Now we are in the 21st century. Those who authored the constitution did not have the scientific knowledge that we do now. Some of them even owned slaves.

    So, I would prefer that judges not subscribe to originalist views.
    I long with all my heart to see an end to FGM and child brides and to see an end to discrimination against minorities. I really do not believe that any religious organization who refuses to serve any minority ( Jews, Muslims, Buddhists, Mormons, people of color, LGBTQ people etc.) should be given any sort of subsidy from any state government.

    As for the case with Native Americans, I know that as a substance use counselor that anyone working in the field who treats people in an abstinent based program is required to avoid use of illicit substances and if the counselor is alcoholic, that counselor must also abstain from alcohol use.

    All these issues point to the fact that the interpretation of the law is nuanced and at times ambiguous. Ambiguity makes it difficult for any of us create a just interpretation of the law, to balance justice with mercy.

  12. Employment Division v. Smith was probably Scalia’s worst decision. Reading the opinion, you get the feeling Scalia ripped out of the Constitution the Free Exercise of Religion Clause. After that decision, the clause had absolutely no effect…it was rendered utterly meaningless.

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