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.