Thank Scalia for the Indiana mess

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Justice Antonin Scalia

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Justice Antonin Scalia

Justice Antonin Scalia

Justice Antonin Scalia

It’s all to the good that Indiana’s Republican leaders have now agreed to make sure the state’s Religious Freedom Restoration Act does not permit discrimination on the basis of sexual orientation, but it’s hard to applaud the way they got there. And for that we have Justice Antonin Scalia to thank.

That’s because legislative politics is just what he intended when he changed the way the country deals with religious freedom claims in Employment Division v. Smith (1990), the case that led to passage of the federal Religious Freedom Restoration Act, and all subsequent state RFRAs.

Smith involved a couple of Native Americans who were fired from their jobs as drug counsellors in Oregon because they smoked peyote as part of the rituals of the Native American Church. They sued for unemployment benefits on the grounds that the First Amendment gave them the right to practice their religion. Writing for the Court, Scalia rejected the Court’s requirement that the government demonstrate a “compelling interest” in the law or regulation in order to reject a Free Exercise claim for an exemption.

Attacking the compelling interest test as a “constitutional anomaly” in Free Exercise cases, Scalia declared that “[a]ny society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.” However, he continued:

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process…It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

This view was rejected by Justice Sandra Day O’Connor, who contended that under the old standard, there was sufficient grounds for rejecting the Native Americans’ claim. “Although I agree with the result the Court reaches in this case, I cannot join its opinion,” she wrote. “In my view, today’s holding dramatically departs from well-settled First Amendment jurisprudence, appears unnecessary to resolve the question presented, and is incompatible with our Nation’s fundamental commitment to individual religious liberty.” Arguing against Scalia’s preference for throwing religious liberty into the political arena, she quoted from Justice Robert Jackson’s opinion in West Virginia State Board of Education v. Barnette, the landmark case that recognized the right of children not to be required to say the Pledge of Allegiance.

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One’s right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Smith has led to conflict at the state level all over the country over whether and to what extent there can be religious exemptions from anti-discrimination law. This involves basic questions about how we as a society balance fundamental rights. The vagaries of political processes are no substitute for judicial determination of such questions. O’Connor had it right.


  • Larry

    That is not fair. Employment Division v. Smith was the only decision Scalia ever penned which was intellectually honest and applied legitimate legal concepts without resorting to nonsense “founder intent”. Scalia was upholding “compelling interests” rather than attacking them. There is still the undercurrent that religious belief does not exempt compliance with laws having nothing to do with the practice of religion in intent or common effect going back to Reynolds v. US.

    The problem was not the ruling, it is the application of it. Too often judges were unwilling to apply its concepts to the actions of Christians who similarly sought to use their religious belief as a flimsy excuse to ignore laws of general application.

  • Pingback: Will broad RFRA laws “lead towards anarchy”? « Sociological Reflections()

  • Diogenes

    Larry, It must be awesome to be the ultimate arbiter on constitutional questions and moral right and wrong…Not! My ad hominem for the day. Normally I abhor them, but your arrogance and hubris on all matters of law and faith tightens my jaw.

  • Ben in oakland

    I’ sure you are equally repelled by Mr. Carr, Doc, Karla-Daneille-Elle, Shawnie, Greg, and Ken.

    As well as everyone else who is certain they know the mind of God, because he/she/it is their BFFF.

  • samuel Johnston

    Deep waters, Mark. I respectfully disagree with Justice O’Connor. No rights can, or should be, absolute. There is always the tension between “bad tendency” and “clear and present danger”.
    I agree with some of Justice Scalia’s reasoning, yet he seems to fail to distinguish sufficiently between religious beliefs and/or religious practices on the one hand, and non compliance and/or non belief on the other. One would prefer that good manners and civility would prevail, but when they do not, I suggest that the right to be left in peace should trump the right to express one’s self in public. Obviously no quick summary can do this subject justice.

  • By no means did Justice O’Connor claim that Free Exercise was an absolute right. She was merely upholding strict scrutiny — that the government demonstrate a compelling interest in order to get a Free Exercise claim rejected.

  • Larry

    Yep its awesome. I am so correct in my assessment that you are apparently too speechless to come up with anything intelligent to say in rebuttal except a personal attack.

    Have fun flinging your poo.