{"id":27554,"date":"2015-04-03T17:40:36","date_gmt":"2015-04-03T21:40:36","guid":{"rendered":"http:\/\/admin.patheos.com\/blogs\/slacktivist\/?p=27554"},"modified":"2015-04-03T17:40:36","modified_gmt":"2015-04-03T21:40:36","slug":"between-scalia-and-charybdis-another-non-scholarly-look-at-why-an-awful-supreme-court-ruling-was-awful-and-made-rfra-necessary","status":"publish","type":"post","link":"https:\/\/www.patheos.com\/blogs\/slacktivist\/2015\/04\/03\/between-scalia-and-charybdis-another-non-scholarly-look-at-why-an-awful-supreme-court-ruling-was-awful-and-made-rfra-necessary\/","title":{"rendered":"Between Scalia and Charybdis (another non-scholarly look at why an awful Supreme Court ruling was awful and made RFRA necessary)"},"content":{"rendered":"\n<\/head>

\u201cI admit I\u2019m still confused by RFRA<\/a>,\u201d writes Rmj of the blog Adventus, attempting to sort out some of the ways Indiana\u2019s rapidly evolving \u201cReligious Freedom Restoration Act\u201d departs from the 1993 federal law it usurps its name from. A follow-up post cuts closer to the heart of the matter,\u00a0attempting to \u201cparse out Smith<\/em> from Hobby Lobby<\/em> (the connection being RFRA)<\/a>.\u201d<\/span><\/p>\n

They\u2019re both interesting discussions well worth a read. Rmj also takes a moment to chide me (good-naturedly, I think<\/em>) for being \u201ca poor legal scholar.\u201d Really, I\u2019m not so much poor as paycheck-to-paycheck middle class. And I\u2019m not actually a legal scholar at all. (I\u2019m thus tempted to take this as a compliment<\/em>. Even poor<\/em> legal scholarship is an accomplishment of sorts for someone outside that guild, right?)<\/p>\n

My connection to RFRA, and my understanding of it, isn\u2019t based on legal scholarship, but on having been one of the multitude of activists who campaigned for that law in 1993.<\/p>\n

RFRA was written and passed as a legal response to the Supreme Court\u2019s decision in Employment Division \u2026<\/em> [blah blah blah] of Oregon v. Smith<\/em>. I can\u2019t give you a legal scholar\u2019s scholarly legal opinion of the Smith<\/em> ruling, but I can<\/em> tell you what we were all so upset about back then. And I can tell you \u2014 second-hand, filtered through my layman\u2019s perspective \u2014 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\u2019ve changed forms and names since then) were all disgusted with at the time.<\/p>\n

Regarding Smith,<\/em> Rmj writes:<\/p>\n

I happen to be of the opinion that\u00a0<\/span>the Supreme Court is mostly a loony bin\u00a0which comforts the comfortable and afflicts the afflicted. \u2026 \u00a0But I\u2019m still not sure where Scalia was wrong.<\/span><\/p><\/blockquote>\n

He\u2019s talking about Justice Antonin Scalia\u2019s argument in Smith<\/em>. I\u2019ll take a crack at that \u2014 from a non-legal-scholar\u2019s perspective.<\/p>\n

I think Scalia did a good job describing the conundrum in Smith<\/em>:<\/p>\n

We have never held that an individual\u2019s religious beliefs\u00a0excuse 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. \u2026<\/p>\n

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. \u2026<\/p>\n

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).<\/p>\n<\/blockquote>\n

The justice cites a bunch of examples and precedents \u2014 with a weirdly\u00a0repeated emphasis on the spectre of war-tax resisters. Scalia isn\u2019t much interested in whether or not peyote, specifically, is illegal. But he\u2019s obsessively\u00a0concerned here that allowing Native Americans to smoke it in their church might encourage the damned Quakers to try again with the same argument they\u2019d been making since they were first taxed to pay for British redcoats in the New World.<\/p>\n

On the whole though, Scalia\u00a0offers a helpful, pointed description\u00a0of the fear that allowing religious exemptions to generally applicable laws could lead to something like\u00a0anarchy \u2014 a state in which no one has to obey any law they claim their \u201cconscientious scruples\u201d dislike. He refers to the dangerous potential of \u201ca system in which each conscience is a law unto itself,\u201d and rightly argues that such a system would not be desirable.<\/p>\n

All true. And I still<\/em> think it\u2019s true \u2014 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<\/em> decision. (Again, I\u2019m not a legal scholar, but from an unscholarly perspective that reversal sure looks a lot like brazen\u00a0hypocrisy in service of partisan politicking.)<\/p>\n

But after providing such a helpful summary of one potential danger\u00a0in Smith,<\/em> Scalia and the rest of the majority just punted. They\u00a0shrugged their\u00a0shoulders and refused to deal with it:<\/p>\n

\n

Because respondents\u2019 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.\u00a0The decision of the Oregon Supreme Court is accordingly reversed.<\/p>\n<\/blockquote>\n

Cornell\u2019s Legal Information Institute<\/a>\u00a0summarizes that this way: \u201cThe Free Exercise Clause permits the State to prohibit sacramental peyote use, and thus to deny unemployment benefits to persons discharged for such use.\u201d<\/p>\n

\"Sirens Scylla and Charybdis,\" by Wolfgang Schweizer.<\/a>
\u201cSirens Scylla and Charybdis,\u201d by Wolfgang Schweizer (via FineArtAmerica.com).<\/figcaption><\/figure>\n

Here\u2019s 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.<\/p>\n

I\u2019m not alone in thinking that\u2019s bonkers. The legal scholars at the ACLU and the BJC (the actually Baptist<\/em> Baptists \u2014 the Roger Williams, soul-freedom types) thought so too. So did every member of the House of Representatives and 97 U.S. Senators.<\/p>\n

We all thought \u2014 and I still<\/em> think \u2014 that Oregon\u2019s state supreme court got it right: \u201cThe 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.\u201d They said the constitutional right trumped the state statute. Scalia et. al. said it was the other way around. Bonkers<\/em>.<\/p>\n

Prior to Smith,<\/em> decisions involving such religious exemptions usually hinged on the question of whether or not the generally applicable law involved a \u201ccompelling state interest.\u201d But the court\u2019s ruling in Smith<\/em> explicitly refused to do that. The courts should not be asked, Scalia argued, to \u201cweigh the social importance\u201d of such a law \u201cagainst the centrality of all religious beliefs.\u201d<\/p>\n

The bonkers bit \u2014 the outrage-inducing component there \u2014 is that little qualifying word \u201call.\u201d Here\u2019s the full sentence, the conclusion and culmination of Scalia\u2019s argument:<\/p>\n

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.<\/p><\/blockquote>\n

Religious minorities are screwed. The courts won\u2019t 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.<\/p>\n

Scalia notes \u201cit may be fairly said\u201d that this is unfair. And he even deigns to lament the unfairness of it. But c\u2019est la vie<\/em>. You gotta break some eggs to make an omelette. And specific injustices are a small price to pay for avoiding the slippery slope of \u201ceach conscience as a law unto itself.\u201d Whatever it takes to keep those effing Quakers quiet.<\/p>\n

Look again at that little word \u201call,\u201d though. Scalia wrote that the courts will not \u201cweigh the social importance of all laws against the centrality of all<\/em> religious beliefs.\u201d But they will weigh laws against the centrality of some<\/em> religious beliefs. They regularly do so. They pretty much constantly do so. What\u2019s outrageous here is that Scalia is saying, explicitly, that the courts can and will and should treat \u201creligious practices that are not widely engaged in\u201d differently<\/em> than those same courts will treat religious practices that are<\/em> widely engaged in.<\/p>\n

Is this really an \u201cunavoidable consequence of democratic government\u201d? That seems to throw in the towel on the whole idea of minority rights. It\u2019s like the old George Carlin bit about the Bill of Rights really being only a \u201cbill of temporary privileges.\u201d<\/p>\n

And is it actually true that we must make a binary choice between \u201ca system in which each conscience is a law unto itself \u201d and creating a legal, constitutionally mandated<\/em> \u201cdisadvantage\u201d for religious minorities?\u00a0Are these really our only options?<\/p>\n

I don\u2019t think so. It may be difficult<\/em> to navigate between Scalia and Charybdis, but that doesn\u2019t mean it\u2019s impossible. And it\u2019s certainly better to try<\/em> \u2014 even if that means sometimes not getting it right \u2014 than it is to insist that we have to choose one or the other of these intolerable options.<\/p>\n

\u00a0<\/p>\n<\/body><\/html>\n","protected":false},"excerpt":{"rendered":"

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A former managing editor of Prism magazine, Fred worked in the parachurch nonprofit world for a decade and then for a decade in the newspaper biz. He began blogging in 2002. In 2003 he began writing a review of the best-selling Left Behind series. Eight years later he still hasn\u2019t finished reviewing the second book of that series and the experience has left him a broken shell of a man. Fred knows the difference between the possessive \u201cits\u201d and the contraction \u201cit\u2019s,\u201d and he is acutely bothered when others mistakenly confuse the two, yet he himself just kind of instinctively types the apostrophe whether or not it belongs there. Some feel this is his greatest hypocrisy, but those who know him better know better. He\u2019s guilty of much greater hypocrisies. Jesus loves Fred far more than Fred loves Jesus, but he at least has the decency to recognize the unfairness of that lopsided relationship and he has long wished that he were better at maybe kind of sort of doing something more to correct that some day. A Baptist, an amateur, a Gen-Xer, a Gemini and a Mets fan, Fred lives in Southeastern Pennsylvania with his wife and two teenage daughters. You can reach him via email at slacktivist at hotmail dot com.\",\"url\":\"https:\/\/www.patheos.com\/blogs\/slacktivist\/author\/fredclark1\/\"}]}<\/script>\n<!-- \/ Yoast SEO plugin. -->","yoast_head_json":{"title":"Between Scalia and Charybdis (another non-scholarly look at why an awful Supreme Court ruling was awful and made RFRA necessary)","description":"This is a false choice and a Bad Thing: \"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.\"","robots":{"index":"index","follow":"follow","max-snippet":"max-snippet:-1","max-image-preview":"max-image-preview:large","max-video-preview":"max-video-preview:-1"},"canonical":"https:\/\/www.patheos.com\/blogs\/slacktivist\/2015\/04\/03\/between-scalia-and-charybdis-another-non-scholarly-look-at-why-an-awful-supreme-court-ruling-was-awful-and-made-rfra-necessary\/","og_locale":"en_US","og_type":"article","og_title":"Between Scalia and Charybdis (another non-scholarly look at why an awful Supreme Court ruling was awful and made RFRA necessary)","og_description":"This is a false choice and a Bad Thing: \"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; 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A former managing editor of Prism magazine, Fred worked in the parachurch nonprofit world for a decade and then for a decade in the newspaper biz. He began blogging in 2002. In 2003 he began writing a review of the best-selling Left Behind series. Eight years later he still hasn\u2019t finished reviewing the second book of that series and the experience has left him a broken shell of a man. Fred knows the difference between the possessive \u201cits\u201d and the contraction \u201cit\u2019s,\u201d and he is acutely bothered when others mistakenly confuse the two, yet he himself just kind of instinctively types the apostrophe whether or not it belongs there. Some feel this is his greatest hypocrisy, but those who know him better know better. He\u2019s guilty of much greater hypocrisies. Jesus loves Fred far more than Fred loves Jesus, but he at least has the decency to recognize the unfairness of that lopsided relationship and he has long wished that he were better at maybe kind of sort of doing something more to correct that some day. A Baptist, an amateur, a Gen-Xer, a Gemini and a Mets fan, Fred lives in Southeastern Pennsylvania with his wife and two teenage daughters. You can reach him via email at slacktivist at hotmail dot com.","url":"https:\/\/www.patheos.com\/blogs\/slacktivist\/author\/fredclark1\/"}]}},"_links":{"self":[{"href":"https:\/\/www.patheos.com\/blogs\/slacktivist\/wp-json\/wp\/v2\/posts\/27554","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.patheos.com\/blogs\/slacktivist\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.patheos.com\/blogs\/slacktivist\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.patheos.com\/blogs\/slacktivist\/wp-json\/wp\/v2\/users\/141"}],"replies":[{"embeddable":true,"href":"https:\/\/www.patheos.com\/blogs\/slacktivist\/wp-json\/wp\/v2\/comments?post=27554"}],"version-history":[{"count":0,"href":"https:\/\/www.patheos.com\/blogs\/slacktivist\/wp-json\/wp\/v2\/posts\/27554\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.patheos.com\/blogs\/slacktivist\/wp-json\/wp\/v2\/media?parent=27554"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.patheos.com\/blogs\/slacktivist\/wp-json\/wp\/v2\/categories?post=27554"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.patheos.com\/blogs\/slacktivist\/wp-json\/wp\/v2\/tags?post=27554"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}