The Enduring Scalia
TUESDAY, OCTOBER 22, 2019
In my last column (“Steps from God to the Religion of the Self”) I recalled Saint John Paul II’s warning about the “subjectivizing” of “conscience”: “[T]he inescapable claims of truth disappear, yielding their place to a criterion of sincerity, authenticity and ‘being at peace with oneself.’”
In that way, “conscience” is subtly but decisively turned: instead of being directed to a set of objective moral truths and the Author of the moral law, this “conscience” comes to mean the “truths” that a person is willing to settle on as his own.
One of the sharpest echoes of this understanding in our law can be found in Justice Antonin Scalia’s warning about a state of affairs in which “each conscience is [treated] as a law unto itself.” That was one of the culminating lines in the famous case of Employment Services v. Smith (1990); it has sparked the most spirited (and unwarranted) criticism of Scalia’s opinion, even among his most devoted friends.
The case involved federal and State laws barring the use of “controlled substances.” The statutes were meant to deal with drug use, a concern once shared across the political spectrum. In this instance, two men working in a center for drug counseling in Oregon were fired for using peyote. They were denied unemployment compensation because, it was held, they were fired for good cause, for they had violated the law.
But the peyote was used under a Native American religious ritual, and so the question was raised as to whether there ought to be an accommodation here of religion, giving the religious a bit more slack from the rules that were applied without controversy to other people, not affected by a sense of religious obligations.
Scalia put the accent on laws of “general applicability.” There was wide support in the country for those laws on drugs, and no one suggested that those laws had been passed for the purpose of harassing or punishing the religious. Nor was there any instance here of the government presuming to judge the rituals or doctrines that were more or less central to any religion – and more or less deserving of an exemption from the laws.
As Scalia understood, it was quite beyond the rightful competence of judges to pronounce on such questions. But the Justice ran through a long list of cases, from the grand to the prosaic, that refused to admit a religious ground of exemption from laws thought to be thoroughly defensible, for the religious along with everyone else.
And so, they covered laws on:
— health and safety, including “child neglect,”
— the paying of taxes, including social security,
— compulsory vaccination,
— the regulation of drugs,
— regulating traffic,
— minimum wages,
— child labor,
— environmental protection,
— military service.
As Scalia noted, in a pointed twist, it was “precisely because we value and protect that religious divergence, [that] 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.”
Justice O’Connor, concurring but troubled, acknowledged that religious conduct cannot be “automatically immune from all government regulation simply because it is motivated by. . .sincere beliefs.” Nevertheless, she appealed to an understanding that she thought had been established in earlier cases: namely, that the government should be required “to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.”
That formula would be taken up and passed just three years later as part of the Religious Freedom Restoration Act (RFRA), and it has been used widely now in our cases. That Act was taken as a reproach to Scalia in the Smith case. And yet that kind of legislative response was not at all at odds with his understanding.
Legislatures may work out accommodations with the religious, on terms that turn out to be defensible or indefensible, and Scalia far preferred to see the matter resolved in that way. That was far better than having judges invoke a “constitutional right” with a sweeping exemption from all manner of laws for any “beliefs” that are claimed to be “religious.”
As it turned out, Justice O’Connor had been willing to join Scalia’s decision in Smith precisely because she saw no “serious dispute that Oregon has a compelling interest in prohibiting the possession of peyote by its citizens.” In other words, she accorded with Scalia while quite missing his deeper point – a mistake that would now be carried over to the judges applying RFRA.
In a country highly divided on the matter of drugs, a consensus had been formed, knitting together majorities willing to act on this issue of drugs – and that was the clearest measure of what people in Oregon and the country thought to be an interest “compelling” enough to enact into law.
Clarence Thomas once raised the question of why the people of Michigan had a “compelling interest” in taxing themselves to sustain an elite law school in which around 70 percent of the graduates will leave the State – and why that interest, in turn, should be taken to justify racial preferences in admissions. The people of Michigan could have just as plausibly decided to use the same funds to support medical care for the aged or to give themselves a reduction in taxes.
Either way, it was the people of Michigan who could decide which interest was more “compelling.” It was not within the tool kit of Justice O’Connor or any federal judge to pronounce on that question.
As Scalia understood, only a deep principle of law should override that judgment. Absent that, matters should not hinge on what an unelected judge regarded, in any case, as a policy “important” enough to elicit her respect.
And so, the secret that hasn’t quite broken through: Scalia had it right in Smith, and still has it right, even with the Religious Freedom Restoration Act on the books.
*Image: Justices O’Connor and Scalia in 1992 (Photo: Laura Patterson/CQ Roll Call/Getty Images)
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Hadley Arkes is the Ney Professor of Jurisprudence Emeritus at Amherst College and the Founder/Director of the James Wilson Institute on Natural Rights & the American Founding. His most recent book is Constitutional Illusions & Anchoring Truths: The Touchstone of the Natural Law. Volume II of his audio lectures from The Modern Scholar, First Principles and Natural Law is now available for download.