I’ve only just read Allen Hertzke’s Weekly Standard essay criticizing Justice Scalia for providing insufficient protection to religious liberty, even though it came out a few weeks ago. Hertzke revisits a long-running dispute on the Right. In a 1990 case, Scalia ruled for the Court that the First Amendment does not require exemptions from generally applicable laws for religiously motivated acts. Thus in the case at issue a state government was not required to provide unemployment benefits to people fired (from a drug-rehab clinic) for using peyote for religious purposes. States could make legislative accommodations for religious believers, but courts could not make them do so.
This is the ruling that Hertzke condemns. His argument is entirely results-driven: He claims that the ruling makes it too easy for governments to impose burdens on religious believers. At no point does he advance an argument that the religious exemptions he favors are actually required by the Constitution. He doesn’t argue that the original understanding of the Constitution is at variance with Scalia’s ruling; he doesn’t argue that we shouldn’t look to the original understanding. As far as I can tell, we’re supposed to reason from sympathy for religious believers to a supportive Supreme Court decision. I’m glad Justice Scalia doesn’t make rulings in that fashion.
You are absolutely correct. The ruling is on the law and the Constitution, not on what might make him feel good.
Reply to this commentLinkReport AbuseThere is no single Supreme Court Justice in our nation's history that has been more mindful and respectful of, and deferential toward, religious liberties.
Does Hertzke think my fellow American Jews have a right to drive home from a family Seder after consuming glasses of wine the Haggadah directs us to drink? Does he think adherents to the Church of Lukumi Babaluai have a right to kill domesticated pets for sacrifices, when their animal worship prohibits disposal of the carrion?
Of course, the two most revealing questions to ask Hertzke on the issue of religious liberty:
1) Does he think that NY State can create a purely secular public school district in the Kiryas Joel neighborhood of Rockland County, NY, for the purpose of providing secular educational instruction for the peculiarly-situated handicapped children of the Satmar Chasidic Jews?
2) Does he think it's unconstitutional for there to be invocations and benedictions at public high school graduation ceremonies?
Scalia's dissents in these two real-life cases are landmark, and they place him at the titular head of Mount Justice for protecting the religious liberties of all Americans. Hertzke should read the Kiryas Joel dissent, because he obviously has not. In response to the wild musings of O'Connor and Kennedy, as to their strong doubts whether the Amish in NY would receive the same accommodation, Scalia opined:
"The Court today finds that the Powers That Be, up in Albany, have conspired to effect an establishment of the Satmar Hasidim. I do not know who would be more surprised at this discovery: the Founders of our Nation or Grand Rebbe Joel Teitelbaum, founder of the Satmar . . . [T]he Founding Fathers would be astonished to find that the Establishment Clause . . . has been employed to prohibit characteristically and admirably American accommodation of the . . . cultural peculiarities of a tiny minority sect. I, however, am not surprised. Once this Court has abandoned text and history as guides, nothing prevents it from calling religious toleration the establishment of religion."
Reply to this commentLinkReport AbuseYou're right that results-oriented reasoning on the Court is absolutely wrong, but I think it's important not to overstate the case for Justice Scalia's opinion in Smith. He does not, as you know, say that his view of religious exemptions to laws of general applicability is required by the Constitution -- he simply notes his approach does not "offend" the Free Exercise clause. Professor Michael McConnell wrote many powerful, originalist, critiques of Smith as you know. The problem for both sides here is that neither side's view is in fact commanded by the Free Exercise clause in any given case.
Reply to this commentLinkReport AbuseActually, I don't think Scalia ever said that Washington State was required by the Constitution to outlaw the use of peyote with no religious exceptions. The point was the Constitution didn't require it. The flip-side to this is his opinion in Kiryas Joel: NY State was not required to accommodate the Satmar Hasidim, but the fact they chose to do so was not only not offensive to the Establishment Clause, but such accommodations are a strong part of America's history. Accommodations are rarely "required" by the Constitution. It is a history and tradition of our nation that such accommodation helps to foster free exercise.
Reply to this commentLinkReport AbuseSo instead, since drug prohibition makes you feel good, you deny the "religious" rights of others. Same shoe; other foot.
Reply to this commentLinkReport AbusePonnuru's criticism of Hertzke is ill-founded because he wants the essay to be a brief or a law review article rather than what it appears designed to be: a historical accounting of recent Free Exercise jurisprudence and its real-world effects. The essay is descriptive (with a point of view), not proscriptive. The country's two leading religious liberty scholars, Michael McConnell and Douglas Laycock, have criticized Smith in detail on grounds both originalist and not. But I don't see why Hertzke's discussion is supposed to rehash those arguments.
Madisonian's comment that Scalia will be viewed as a preeminent protector of religious liberty demonstrates some ignorance of the field. Scalia may be great on the Establishment Clause, but given the increasing number of conflicts between the regulatory state and conscience, that Clause is far less important than the Free Exercise Clause. It is more important to the Catholic Church in Massachusetts to be able to continue having a license to arrange adoptions than it is to see a creche on Boston Common. It is because of Scalia's ill-founded decision in Smith that the Catholic Charities had to shut down its adoption ministry in Massachusetts. Same thing with conscience for healthcare providers. Smith is a black mark on Scalia's record and will remain so until he recants. (I'm not holding my breath.)
Reply to this commentLinkReport Abuse