Justice Scalia’s terrible religious legacy

[rug]

Mark Silk | Feb 15, 2016

At Saturday night’s Republican presidential debate, Ted Cruz claimed that the death of Supreme Court Justice Antonin Scalia had ratcheted up the stakes of the election because, in his words, “We are one justice away from a Supreme Court that would undermine the religious liberty of millions of Americans.” In fact, however, it was Scalia who did more to undermine religious liberty in America than any Supreme Court justice in history.

He did it by creating, and persuading four fellow justices to sign on to, an entirely new of way of interpreting the First Amendment’s Free Exercise clause. A quarter-century ago, in the majority opinion in Employment Division v. Smith, he established that the free exercise of religion could not be violated by “neutral” and “generally applicable” laws.

Smith involved two drug counsellors who were fired from their jobs because, in violation of a regulation against counsellors using drugs, they ingested peyote as members of the Native American Church. Because the regulation was neutral and generally applicable — i.e. it was not directed against a specific religious group or practice — they lost their case.

To be sure, Scalia did not claim to be against granting legal exceptions on religious grounds. “Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process,” he wrote. “It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use.”

http://marksilk.religionnews.com/2016/02/15/justice-scalias-terrible-religious-legacy/

[Jim__]

1. How do you think Scalia would have ruled in Employment Division v Smith if the case was about ...

... a law against giving alcohol to minors and the specific case involved communion wine? My best guess is that Scalia would have ruled in favor of the religious right of the people to give communion wine to minors, and to protect their right to unemployment if they were fired for doing that. My problem with Scalia is that I think he both could and would use his supposed original intent reading to justify doing whatever he wanted to do.

[rug]

2. An interesting question.

I can't easily imagine a scenario where an employee, let alone a child of an employee, woud be given communion wine at a workplace (assuming the party wasn't a pastor,)

For starters, every state I'm aware of exempts communion wine from the prohibition against giving alcohol to minors. In fact not even Prohibition prohibited that practice.

But my guess is, assuming the issue of distributing communion in a workplace was not before the Court, my guess is he would have allowed it, mainly because the practice is not per se unlawful inside or outside the workplace.

But based on his opinion in Smith, he would not extend that to peyote or Rastafarians.

The underlying question is , though, would he have found taking communion at the workplace a constitutional right. As he did here, he likely would have said no.

[Jim__]

3. Maybe I'm misreading the decision, but I didn't get that they took peyote at work.

From the decision:

Respondents Smith and Black were fired by a private drug rehabilitation organization because they ingested peyote, a hallucinogenic drug, for sacramental purposes at a ceremony of their Native American Church. Their applications for unemployment compensation were denied by the State of Oregon under a state law disqualifying employees discharged for work-related "misconduct." Holding that the denials violated respondents' First Amendment free exercise rights, the State Court of Appeals reversed. The State Supreme Court affirmed, but this Court vacated the judgment and remanded for a determination whether sacramental peyote use is proscribed by the State's controlled substance law, which makes it a felony to knowingly or intentionally possess the drug. Pending that determination, the Court refused to decide whether such use is protected by the Constitution. On remand, the State Supreme Court held that sacramental peyote use violated, and was not excepted from, the state law prohibition, but concluded that that prohibition was invalid under the Free Exercise Clause.

...

I haven't read through the whole decision, but based on the little bit I did read, I got the impression that they took the drug at a religious ceremony. I definitely agree that being on peyote while counseling against drug use at a rehab center would be an offense that involves a compelling government interest.

[rug]

4. Then I misundersttod your question.