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07 March 2012

Joan Walsh: Liar, Liar! Pants on Fire!


The Left has been passing around some quotes of Justice Antonin Scalia from Employment Division, Department of Human Resources of Oregon v. Smith, 494 U.S. 872 (1990), where the Supreme Court held that the Free Exercise Clause permits a State to prohibit sacramental peyote use and thus to deny unemployment benefits to persons discharged for such use" and that neutral laws of general applicability do not violate the Free Exercise Clause of the First Amendment.  They have purposefully misled the public and it is time to set the record straight.

These are some of the quote from Smith:

The Free Exercise Clause of the First Amendment, which has been made applicable to the States by incorporation into the Fourteenth Amendment, see Cantwell v. Connecticut, 310 U.S. 296, 303 (1940), provides that "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof. . . . " U.S. Const. Am. I.

The free exercise of religion means, first and foremost, the right to believe and profess whatever religious doctrine one desires. Thus, the First Amendment obviously excludes all "governmental regulation of religious beliefs as such." Sherbert v. Verner, 374 U.S. 398 (1963).

The government may not compel affirmation of religious belief, see Torcaso v. Watkins, 367 U.S. 488 (1961), punish the expression of religious doctrines it believes to be false, United States v. Ballard, 322 U.S. 78,  (1944), impose special disabilities on the basis of religious views or religious status, see McDaniel v. Paty, 435 U.S. 618 (1978); Fowler v. Rhode Island, 345 U.S. 67, 69 (1953); cf. Larson v. Valente, 456 U.S. 228, 245 (1982), or lend its power to one or the other side in controversies over religious authority or dogma, see Presbyterian Church v. Hull Church, 393 U.S. 440, 445-452 (1969); Kedroff v. St. Nicholas Cathedral, 344 U.S. 94, 95-119 (1952); Serbian Eastern Orthodox Diocese v. Milivojevich, 426 U.S. 696, 708-725 (1976).

As described succinctly by Justice Frankfurter in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):

"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."


If the "compelling interest" test is to be applied at all, then, it must be applied across the board, to all actions thought to be religiously commanded. Moreover, if "compelling interest" really means what it says (and watering it down here would subvert its rigor in the other fields where it is applied), many laws will not meet the test. Any 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. Precisely because "we are a cosmopolitan nation made up of people of almost every conceivable religious preference," Braunfeld v. Brown, 366 U.S. at 606, and precisely because we value and protect that religious divergence, we cannot afford the luxury of deeming presumptively invalid, as applied to the religious objector, every regulation of conduct that does not protect an interest of the highest order. The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind -- ranging from [p889] compulsory military service, see, e.g., Gillette v. United States, 401 U.S. 437 (1971), to the payment of taxes, see, e.g., United States v. Lee, supra; to health and safety regulation such as manslaughter and child neglect laws, see, e.g., Funkhouser v. State, 763 P.2d 695 (Okla.Crim.App.1988), compulsory vaccination laws, see, e.g., Cude v. State, 237 Ark. 927, 377 S.W.2d 816 (1964), drug laws, see, e.g., Olsen v. Drug Enforcement Administration, 279 U.S.App.D.C. 1, 878 F.2d 1458 (1989), and traffic laws, see Cox v. New Hampshire, 312 U.S. 569 (1941); to social welfare legislation such as minimum wage laws, see Susan and Tony Alamo Foundation v. Secretary of Labor, 471 U.S. 290 (1985), child labor laws, see Prince v. Massachusetts, 321 U.S. 158 (1944), animal cruelty laws, see, e.g., Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 723 F.Supp. 1467 (S.D.Fla.1989), cf. State v. Massey, 229 N.C. 734, 51 S.E.2d 179, appeal dism'd, 336 U.S. 942 (1949), environmental protection laws, see United States v. Little, 638 F.Supp. 337 (Mont.1986), and laws providing for equality of opportunity for the races, see, e.g., Bob Jones University v. United States, 461 U.S. 574, 603-604 (1983). The First Amendment's protection of religious liberty does not require this.

Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process. Just as a society that believes in the negative protection accorded to the press by the First Amendment is likely to enact laws that affirmatively foster the dissemination of the printed word, so also a society that believes in the negative protection accorded to religious belief can be expected to be solicitous of that value in its legislation as well. 

But, what the Left has purposefully done is to leave the impression that the story ends there.  Unfortunately for them, it doesn't.

In the wake of Smith, Congress passed the Religious Freedom Restoration Act of 1993.  It passed the Democrat-controlled House of Representatives UNANIMOUSLY.   It passed the Democrat-controlled Senate by a vote of 97-3.  President Bill Clinton, a Democrat, signed it into law.

In 1993, in Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 508 U.S. 520 (1993), Justice Antonin Scalia, himself, joined the majority (7) in overturning the very same animal cruelty law to which he referred in Smith, i.e., Church of the Lukumi Babalu Aye Inc. v. City of Hialeah, 723 F.Supp. 1467 (S.D.Fla.1989).

What changed?

You've got it!  The Religious Freedom Restoration Act of 1993, which was upheld, as to the Federal government in City of Boerne v. Flores, 521 U.S. 507 (1997).  The only reason that the Court ruled it unconstitutional as to the states was because of a Fourteenth Amendment, Section 5, enforcement issue...not a First Amendment issue... not a "privacy rights" issue... not even a Tenth Amendment issue.

So, Justice Scalia's words in Smith might be pretty and some might evenagree with them, but they no longer apply nor would he agree that they are applicable today.

Joan Walsh really needs to learn how to Shepardise caselaw.

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