“I admit I’m still confused by RFRA,” writes Rmj of the blog Adventus, attempting to sort out some of the ways Indiana’s rapidly evolving “Religious Freedom Restoration Act” departs from the 1993 federal law it usurps its name from. A follow-up post cuts closer to the heart of the matter, attempting to “parse out Smith from Hobby Lobby (the connection being RFRA).”
They’re both interesting discussions well worth a read. Rmj also takes a moment to chide me (good-naturedly, I think) for being “a poor legal scholar.” Really, I’m not so much poor as paycheck-to-paycheck middle class. And I’m not actually a legal scholar at all. (I’m thus tempted to take this as a compliment. Even poor legal scholarship is an accomplishment of sorts for someone outside that guild, right?)
My connection to RFRA, and my understanding of it, isn’t based on legal scholarship, but on having been one of the multitude of activists who campaigned for that law in 1993.
RFRA was written and passed as a legal response to the Supreme Court’s decision in Employment Division … [blah blah blah] of Oregon v. Smith. I can’t give you a legal scholar’s scholarly legal opinion of the Smith ruling, but I can tell you what we were all so upset about back then. And I can tell you — second-hand, filtered through my layman’s perspective — what it was that the legal scholars of the Baptist Joint Committee and the ACLU and the various prot0-defense-funds of the religious right (they’ve changed forms and names since then) were all disgusted with at the time.
Regarding Smith, Rmj writes:
I happen to be of the opinion that the Supreme Court is mostly a loony bin which comforts the comfortable and afflicts the afflicted. … But I’m still not sure where Scalia was wrong.
He’s talking about Justice Antonin Scalia’s argument in Smith. I’ll take a crack at that — from a non-legal-scholar’s perspective.
I think Scalia did a good job describing the conundrum in Smith:
We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition. …
Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities. …
Subsequent 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).
The justice cites a bunch of examples and precedents — with a weirdly repeated emphasis on the spectre of war-tax resisters. Scalia isn’t much interested in whether or not peyote, specifically, is illegal. But he’s obsessively concerned here that allowing Native Americans to smoke it in their church might encourage the damned Quakers to try again with the same argument they’d been making since they were first taxed to pay for British redcoats in the New World.
On the whole though, Scalia offers a helpful, pointed description of the fear that allowing religious exemptions to generally applicable laws could lead to something like anarchy — a state in which no one has to obey any law they claim their “conscientious scruples” dislike. He refers to the dangerous potential of “a system in which each conscience is a law unto itself,” and rightly argues that such a system would not be desirable.
All true. And I still think it’s true — even though Justice Scalia himself seems to have pulled a 180, ignoring all such concerns and cheerfully pushing off down his own slippery slope in the Hobby Lobby decision. (Again, I’m not a legal scholar, but from an unscholarly perspective that reversal sure looks a lot like brazen hypocrisy in service of partisan politicking.)
But after providing such a helpful summary of one potential danger in Smith, Scalia and the rest of the majority just punted. They shrugged their shoulders and refused to deal with it:
Because respondents’ ingestion of peyote was prohibited under Oregon law, and because that prohibition is constitutional, Oregon may, consistent with the Free Exercise Clause, deny respondents unemployment compensation when their dismissal results from use of the drug. The decision of the Oregon Supreme Court is accordingly reversed.
Cornell’s Legal Information Institute summarizes that this way: “The Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use.”
Here’s an even blunter summary: The constitutional prohibition against making a law prohibiting the free exercise of religion does not prevent a state from making a law prohibiting the free exercise of religion.
I’m not alone in thinking that’s bonkers. The legal scholars at the ACLU and the BJC (the actually Baptist Baptists — the Roger Williams, soul-freedom types) thought so too. So did every member of the House of Representatives and 97 U.S. Senators.
We all thought — and I still think — that Oregon’s state supreme court got it right: “The State Supreme Court held that sacramental peyote use violated, and was not excepted from, the state law prohibition, but concluded that that prohibition was invalid under the Free Exercise Clause.” They said the constitutional right trumped the state statute. Scalia et. al. said it was the other way around. Bonkers.
Prior to Smith, decisions involving such religious exemptions usually hinged on the question of whether or not the generally applicable law involved a “compelling state interest.” But the court’s ruling in Smith explicitly refused to do that. The courts should not be asked, Scalia argued, to “weigh the social importance” of such a law “against the centrality of all religious beliefs.”
The bonkers bit — the outrage-inducing component there — is that little qualifying word “all.” Here’s the full sentence, the conclusion and culmination of Scalia’s argument:
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.
Religious minorities are screwed. The courts won’t help them and their only recourse is to somehow convince the majority to vote for laws that will allow them the same rights the majority enjoys. Good luck with that.
Scalia notes “it may be fairly said” that this is unfair. And he even deigns to lament the unfairness of it. But c’est la vie. You gotta break some eggs to make an omelette. And specific injustices are a small price to pay for avoiding the slippery slope of “each conscience as a law unto itself.” Whatever it takes to keep those effing Quakers quiet.
Look again at that little word “all,” though. Scalia wrote that the courts will not “weigh the social importance of all laws against the centrality of all religious beliefs.” But they will weigh laws against the centrality of some religious beliefs. They regularly do so. They pretty much constantly do so. What’s outrageous here is that Scalia is saying, explicitly, that the courts can and will and should treat “religious practices that are not widely engaged in” differently than those same courts will treat religious practices that are widely engaged in.
Is this really an “unavoidable consequence of democratic government”? That seems to throw in the towel on the whole idea of minority rights. It’s like the old George Carlin bit about the Bill of Rights really being only a “bill of temporary privileges.”
And is it actually true that we must make a binary choice between “a system in which each conscience is a law unto itself ” and creating a legal, constitutionally mandated “disadvantage” for religious minorities? Are these really our only options?
I don’t think so. It may be difficult to navigate between Scalia and Charybdis, but that doesn’t mean it’s impossible. And it’s certainly better to try — even if that means sometimes not getting it right — than it is to insist that we have to choose one or the other of these intolerable options.
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