A crowd watches as the body of the late Justice Antonin Scalia is taken into the U.S. Supreme Court in Washington, D.C., on February 19, 2016. Photo by Indianz.Com
Author and law professor Marci A. Hamilton argues that the late Justice Antonin Scalia got it right with Employment Division v. Smith, a religious rights case involving followers of the Native American Church. The 1990 decision was Scalia's first shot at writing a majority opinion in an Indian law case:
What Scalia’s majority opinion laid out in Smith was a vision of a democratic system wherein there is law and order, and for those who find their religious liberty impacted by a law that is neutral and generally applicable, they have the right to ask their legislature or other policymakers for exemptions. And do we have exemptions? Thousands. He was secure in the knowledge that religious practices that would not harm others could be accommodated, and would be, but he was also frank in saying that the Court was the wrong branch to carve up neutral, generally applicable laws. He was so right. What followed Smith? Exemptions wherever the tiny Native American Church needed them! Despite this increase in religious liberty through legislative exemptions, RFRA was enacted regardless, and lo and behold, we have the Court doing what Justice Scalia’s majority opinion in Smith said was beyond its institutional competence: unilaterally choosing which accommodations to carve out of duly enacted, neutral laws. Alarmingly, RFRA transformed the Court into the vehicle for each person to be a law unto him or herself. That became apparent when the Court’s Burwell v. Hobby Lobby decision led the Court to find that a large, for-profit company could tailor its benefit package according to its owners’ religious beliefs—without regard for employees’ rights not to be discriminated against based on religion or gender in benefit packages. That decision operated at the ethereal level where all women could receive cost-free contraception covered by an endlessly wealthy government, according to the Court, but landed in the reality that the women working for religious believers like the Green family of Hobby Lobby would have to pay for whatever contraception their bosses disapproved for religious reasons until the government proposed a new accommodation. The same religious groups object to this accommodation as well, which is essentially the same as the accommodation that will be considered in Zubik v. Burwell this Term.Get the Story:
Marci A. Hamilton: In Defense of Justice Scalia on Religious Liberty and Smith (Justia 2/18)
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