I’ve been reading Justice Antonin Scalia’s decision in “Employment Division v. Smith,” a 1990 case in which the Supreme Court pretty much settled the question of whether the federal government can require or outlaw actions that might bump up against religious beliefs. The decision makes it clear that the Catholic bishops have no legal or constitutional basis for their complaint.
Scalia, himself a devout and very conservative Catholic, wrote in the majority decision:
“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.
Scalia traces Supreme Court rulings on the issue back to an 1879 decision that upheld federal laws against polygamy. A member of the Mormon Church had argued that because his faith required men to marry multiple wives, polygamy was protected under the First Amendment and that Mormons could claim a religious exemption from such a law.
The Supreme Court disagreed, concluding:
“… the only question which remains is whether those who make polygamy a part of their religion are excepted from the operation of the statute. If they are, then those who do not make polygamy a part of their religious belief may be found guilty and punished, while those who do, must be acquitted and go free. This would be introducing a new element into criminal law. … Suppose one believed that human sacrifices were a necessary part of religious worship; would it be seriously contended that the civil government under which he lived could not interfere to prevent a sacrifice? Or if a wife religiously believed it was her duty to burn herself upon the funeral pile of her dead husband; would it be beyond the power of the civil government to prevent her carrying her belief into practice?
… To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and, in effect, to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.”
Now, polygamy, human sacrifice and the Hindu practice of “sati” are admittedly rather extreme and obvious cases. However, Scalia went on to note a string of other Supreme Court cases decided to the same effect.
The most relevent to the current controversy is a a 1982 case that closely parallels the current discussion over contraception. In United States v. Lee, the Supreme Court found that there was nothing unconstitutional in requiring an Amish employer to withhold and pay Social Security taxes for his workers even though “the Amish faith prohibited participation in governmental support programs.”
Here’s how they put it:
“When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes that are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer’s religious faith on the employees.”
You would not need to change a single word of that paragraph to apply it to the contraceptive debate.
In his own opinion in the Smith case, Scalia wraps it up rather bluntly:
“Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now.”
– Jay Bookman