Harold Meyerson has a column in the Washington Post about the Hobby Lobby case, which the Supreme Court recently agreed to hear, but I think he should have consulted with a constitutional law attorney or professor before writing at least one passage in it:
The Supreme Court has not frequently ruled that religious belief creates an exemption from following the law. On the contrary, in a 1990 majority opinion, Justice Antonin Scalia wrote that Native Americans fired for smoking peyote as part of a religious ceremony had no right to reinstatement. It “would be courting anarchy,” Scalia wrote in Employment Division v. Smith, to allow them to violate the law just because they were “religious objectors” to it. “An individual’s religious beliefs,” he continued, cannot “excuse him from compliance with an otherwise valid law.”
It will be interesting to see whether Scalia still believes that now that he’s being confronted with a case where the religious beliefs in question may be closer to his own.
But this elides a very important aspect that, perhaps, Meyerson is entirely unaware of. The court’s ruling in Employment Division v Smith prompted Congress to pass the Religious Freedom Restoration Act in 1993, which does, in fact, grant religious exemptions from many generally applicable laws. Justice Scalia’s ruling in Smith only dealt with what was required or allowed by the Free Exercise Clause, not what is required or allowed by federal statutory law, which has changed since that ruling. So if Justice Scalia were to write another ruling in the Hobby Lobby case saying that RFRA does require such an exemption, it would not contradict with his ruling in Smith. It would be entirely consistent.The real question in the case, which Meyerson does state more or less correctly, is whether corporations are covered by RFRA or not. RFRA says that the government “shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” So the question, as in Citizens United, is whether a corporation is a person, this time under the Free Exercise Clause rather than the Free Speech Clause. The 10th Circuit Court of Appeals in this case said:
“We see no reason the Supreme Court would recognize constitutional protection for a corporation’s political expression but not its religious expression.”
That may be true, of course, but the question really is whether the RFRA specifically would have considered corporations people, not whether the Free Exercise Clause would require it. And that really turns on the legislative history of that law.