Who is laughing now?
With the growing public skirmishes about gay marriage, nullification, "Christian businesses," religious schools, etc., the questions of constitutionally required, proper balance between an individual's First Amendment religious freedom rights and the public's need to comply with generally applicable, neutral laws are going to be important. It is a recurring and genuinely difficult issue, and I will have more to write about it later.
But there is one curious thing to note from the start. Continuing to this day, and for the past 25 years, the First Amendment law on this subject remains controlled by a majority opinion written by Justice Antonin Scalia in a case captioned Employment Division, Department of Human Resources of Oregon vs. Smith, 494 U.S. 872 (1990).
While Justice Scalia's Smith opinion has been partially superseded by the subsequent federal and state Religious Freedom and Restoration Acts ("RFRAs"), such RFRAs do not apply in all circumstances or in all states. In any event, whether an RFRA applies, Justice Scalia's Smith decision remains the controlling authority on what the First Amendment - the U.S. Constitution - requires in this situation. And, I have to admit, Justice Scalia's "vision" sounds right, surprisingly eloquent, and particularly worthy of including in the current debate.
Writing for a majority, Justice Scalia wrote that a "neutral law of general applicability" (such as the subsequent ACA or the gay marriage ruling) would survive a First Amendment challenge, notwithstanding the challengers' sincerely held religious objections:
[Supreme Court] decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."
Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now. . . . "Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government."
Continuing, Justice Scalia specifically rejected the notion that generally applicable laws needed to comport with an individual's private religious beliefs because that would allow the religious objector to become "a law unto himself":
To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is "compelling" - permitting him, by virtue of his beliefs, "to become a law unto himself," - contradicts both constitutional tradition and common sense. The "compelling government interest" requirement seems benign, because it is familiar from other fields. . . . What it produces in those other fields -- equality of treatment, and an unrestricted flow of contending speech -- are constitutional norms; what it would produce here -- a private right to ignore generally applicable laws -- is a constitutional anomaly.
Likely recognizing that he was announcing a rule unpopular with his right-wing supporters (and he was;
see subsequent RFRA's above), 1990 Scalia concluded his majority opinion with an expansive and eloquent justification for circumscribing the sweep of the individual's religious conscience in the public sphere:
Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind - ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races. The First Amendment's protection of religious liberty does not require this. [citations omitted throughout]
Umm . . . wow. As a liberal, that sounds about right to me, and it is coming from the
poster-child of right-wing jurisprudence. Maybe I agree with Justice Scalia on this point?
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Now, Scalia today does not seem upset at all with the RFRAs that overruled his (perhaps) signature decision. And in Smith, the then liberal justices - Brennan, Marshall and Blackmun - dissented in favor of roughly the same standard contained in today's RFRAs. Yeesh! Worse, the ACLU, which once supported the RFRAs, just announced that they are withdrawing such support.
Like I said: this issue is thorny. But unlike Republicans' hysterical rhetoric today, I am starting my thoughts with what the First Amendment provides - including Scalia's controlling decision. And I am still thinking: maybe Scalia got it mostly right? I'm not sure.