The Necessity of Religion : High Court Says Religious Freedom Is a Luxury--Wrong

The U.S. Supreme Court’s decision Tuesday to strip religious believers whose practices violate certain general laws of the constitutional protection they now enjoy is more than a sweeping repudiation of nearly a century of humane and enlightened legal precedent. It is an affront both to our society’s hard-won pluralism and to the belief in limited government that distinguishes principled conservatism from mere reaction.

The case at issue--Employment Division, State of Oregon vs. Smith--involved two Indians, members of the Native American Church, who were dismissed from their jobs as drug counselors in a state program after they admitted eating peyote during a religious ceremony. The court upheld the dismissal. But rather than stopping there, the author of the majority opinion, Justice Antonin Scalia, set down a new standard for application of the First Amendment to conflicts between religious practice and general laws.

In a line of decisions dating back to the First World War, the court had held that when such conflicts occur, the individual’s right to religious freedom must prevail unless the state asserts an even more “compelling interest,” such as enforcement of health and safety laws on religious schools. On Tuesday, the court set that standard aside and ruled that general laws will be presumed valid even if they seriously infringe on the exercise of religious freedom. Only those statutes intended to repress a particular creed, the court held, are prohibited by the First Amendment. The United States, Justice Scalia wrote, “cannot afford the luxury” of setting laws aside simply because they restrict religious practices. This new standard, he wrote, “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 law.”

The Founders, of course, envisioned no such system but one in which the law made room for the expression of individual conscience, and in which the ability of the democratic majority to tyrannize the minority was restrained by an inviolable Bill of Rights, the first of which was freedom of religion. Through much of our history, much of that charter has remained an ideal rather than a reality, particularly when it comes to the free exercise of religion. Scalia himself is the product of a parochial educational system created because 19th-Century public schools subjected the children of Catholic immigrants to instruction in the majority’s Protestant religion. The largely successful struggle to make liberty of conscience a functional reality rather than a constitutional ideal is one of the glories of 20th-Century America.

The court’s decision to turn its back on such an achievement at precisely the moment that this nation is attempting to come to terms with unprecedented ethnic and religious diversity is pure legal adventurism.