Arguing for Obama, Justice Antonin Scalia
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
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334 comments Add your comment
gm
February 10th, 2012
6:50 pm
Newt” Obama has pledge war on Religion
I am sure Newt makes the Catholic pride, Newt are you declaring war on adultry, 30 ethics violations, 3 ex wifes, I am sure the Catholics are big on divorce ?
0311/1811
Oh you mean stunts like killing 50 out of 65 terrorist on the top list around the world that would love to destroy right wing nut jobs like you.
Adam
February 10th, 2012
6:52 pm
even though there is no real inablity to procure this good other wise.
uhhhhh….
Adam
February 10th, 2012
6:53 pm
I’m starting to wonder if Newt wants a talk radio show. He can certainly spread lies as easily and with as much vitriol as Rush.
gm
February 10th, 2012
7:00 pm
Thanks Obama, with your wise leader ship, have any of the idiots on the right notice there is no more fear in America against terrorist? just maybe he should have let some of these people over here and shake up these right wing Anti American idiots we have.
The right wing have to talk about this issue because they have nothing to run on, Rick wants to blow Iran away, but not with his kids, Mitt is to rich to care,
Newt, immorality problems, the rep with their doom and gloom of America is not going to work, Obama will win in a land slide, nobody likes the rep but angry old white men from the south and submissive southern conservative old women.
Paul
February 10th, 2012
7:00 pm
Adam
Well, there’s a lot more money and fawning adoration in that line of work than there is in the presidency -
0311/1811
February 10th, 2012
7:38 pm
gm:
“Oh you mean stunts like killing 50 out of 65 terrorist on the top list around the world that would love to destroy right wing nut jobs like you.”
I hate to disappointed you but that would have been done by our elite special forces under any president.
0311/1811
February 10th, 2012
7:39 pm
Excuse me: disappoint
JKL2
February 10th, 2012
8:10 pm
joe mama- I imagine that some women, lesbians or not, might want the morning-after pill if they had been raped
We know every woman seeking an abortion is a rape or incest victims. I suppose that next you’ll be saying evil banks make people take out loans…
ld
February 10th, 2012
8:14 pm
whether or not this was a “real” compromise, the fact that Obama stepped up to the mics and declared he was compromising indicates that religion still has more political clout than women’s rights groups
instead of Obamacare–which I hope will be declared unconstitutitonal this spring–medical care, including birth control, for those that cannot get it elsewhere because of lack of $ or tyranny of their church could be provided via EXISTING county health departments–w/funds and mandates expanded/extended for that purpose–cheaper than Obamacare via private for mega-profit insurance companies if properly set up.
Vast Right Wing Conspiracy
February 10th, 2012
9:05 pm
Well, if Justice Scalia went over to the Dark Side, shame on him. We will see how he votes on the Obamacare case when it comes up later this year. President Food Stamps has a real problem here. His “back up” was not really a “back up”. That is plain for all to see. I have no idea how many Catholics utilize contraceptives, but I am willing to bet that even those that do are not interested in seeing the Catholic Church pushed around like this. If Emperor Nero loses the Catholic vote, he is history. I would assume the Supreme Leader’s ultimate goal is to take over all the hospitals – I wonder if he believes he can do that by 2016? This clown has some odd ideas.
Lysander
February 10th, 2012
11:06 pm
In more than a few areas of the law, the subtle difference between commission and omission is an important distinction.
Jay: read the selection of Scalia’s opinion you excised more carefully and you’ll see why it doesn’t demand the same result in the contraception issue. The ACA requires Catholics to act in a particular way that is contrary to their beliefs.
On the other hand, Scalia’s examples involve a government proscription of positive behavior. Seems like an insignificant difference, but many judicial opinions turn on such a distinction. And, I’m certain, Scalia chose the words “prohibiting conduct” very carefully.
Scooter
February 11th, 2012
12:17 am
Women should not abort little vab
Scooter
February 11th, 2012
12:19 am
I meant women should not abort little babies! And you say us gays are evil! wsm_marathoner
Oscar
February 11th, 2012
2:13 am
The ACA requires Catholics to act in a particular way that is contrary to their beliefs.
__________
All religious gourps have to abandon practices that are against the law. There is a very long list of examples of this. In this case, the religious group in question follow the law. Polls show members of Catholic churches are more highly in favor of contraception than any other group. Whoever is purporting to speak for Catholic does not represent their views.
Right Thinker
February 11th, 2012
9:19 am
You lefties are amazing, simply amazing. The issue is requiring a religious organization to provide (which means the organization must pay for) contraception “no cost to the employee” which means 100% payment, no customary co-pay as is normal for prescription drugs. Maybe I missed the memo, but is there A ban on employees purchasing their birth control pills? Requiring an organization to provide an item to which they are opposed, for no cost, and absorb those costs is far different than the cases cited.
As to the insurance companies, don’t fret about them. Unless this socialist takeover of 18% of the nation’s economy isn’t stopped the legislation is crafted in such a way as to put those companies out of business. Companies must pay 85% of premiums out in claims. Meaning they must operate on 15% of revenues. Can you name any organization which can operate on 15% of revenues? Generally speaking expenses including state premium taxes, employee compensation, utilities, Federal taxes, office and operating overhead run 28%. No agency of Federal Government operates anywhere remotely compared to 28%, much less 15%. Social Security spends more on operating expenses than it distributes in benefits, same for Medicare and Medicaid. Yet, Obamacare demands health insurance carriers operate with overhead at a rate such that companies will vacate their business. Single payer has always been the goal of Democrats/Socialists, they are closer.
If you like the Post Office, if you like the efficiency of Social Security and Medicare you’re going to love Obamacare. Long lines, subpar care, rationing, it’s coming to your town.
RAMZAD
February 11th, 2012
9:32 am
Catholics need to handle their international pedophilia problem and provide health insurance in their businesses like all other regular business do. I do not rate Catholics, because they have been either party to or indifferent spectators to just about every horror that one side of humanity has ever visited upon another. You name the atrocity and Catholics were there pushing the fire or minding their own business.
Progressive Humanist
February 11th, 2012
9:37 am
Does anyone else find it disturbingly ironic that an organization with a record of rampant pedophilia would still be able to exert political influence on the topic of sexuality and contraception? I’m sorry, but grown men in flamboyant costumes who have never engaged in heterosexual intercourse and adhere to “talking snake” superstitions have no place in the discussion of health care or reproductive rights (or rational discussion of public policy for that matter).
TGT
February 11th, 2012
10:08 am
Nice pull from one of your favorite spots on the “blogroll” (Talking Points) Jay, however, as the Ethics and Public Policy Center notes:
As the text of the Religious Freedom Restoration Act makes clear, there are four questions involved in determining whether the HHS mandate violates RFRA:
1. Does a person engage in an “exercise of religion” when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients?
2. Does the HHS mandate “substantially burden” such exercise of religion?
3. Does application of the burden to the person further a “compelling governmental interest”?
4. Is application of the burden to the person the “least restrictive means” of furthering a compelling governmental interest?
If the answer to question 1 or question 2 is no, then there is no issue under RFRA and no reason to reach questions 3 and 4. If the answers to question 1 and question 2 are yes, then questions 3 and 4 come into play; if the answer to either question 3 or question 4 is no, then RFRA has been violated.
…
I don’t see how anyone can seriously dispute that a person engages in an “exercise of religion” under RFRA when, for religious reasons, he performs, or abstains from performing, certain actions. (I’m not now addressing the distinct question whether and when a prohibition on that exercise of religion amounts to “prohibiting the free exercise [of religion]” in violation of the First Amendment.) Consider the “exercise of religion” involved in some leading Supreme Court cases: In Sherbert v. Verner (1963), an individual’s religious beliefs forbade her from working on Saturdays. In Wisconsin v. Yoder (1972), the parents of teenaged children had religious beliefs that prohibited them from sending their children to high school. In Thomas v. Review Board (1981), a worker’s religious beliefs barred him from participating in the production of armaments.
While the Court’s decision in Employment Division v. Smith (1990) altered the standard for assessing which laws will be deemed to “prohibit[] the free exercise [of religion]” (and thus violate the First Amendment), it reaffirmed that “the ‘exercise of religion’ often involves not only belief and profession but the performance of (or abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation.” (And, of course, even if Smith had narrowed the constitutional definition of “exercise of religion,” the very point of RFRA was to restore the pre-Smith regime, so there would be no reason that Smith’s constitutional definition would narrow the meaning of RFRA’s statutory term “exercise of religion.”)
Indeed, HHS, in explaining its decision to allow the HHS bureaucracy to establish exemptions from the mandate for an extremely narrow category of “religious employers,” states that “it is appropriate [for the bureaucracy to take] into account the effect on the religious beliefs of certain religious employers if coverage of contraceptive services were required in the group health plans in which employees in certain religious positions participate.” (See page 46623 of HHS’s interim rule (emphasis added).) HHS is thus acknowledging that these employers are engaged in an “exercise of religion” (within the meaning of RFRA) when they refuse to provide health insurance that covers contraceptives. (Why else even contemplate a religious exemption?) Although HHS doesn’t see fit to allow exemptions to take into account the effect on the religious beliefs of other employers, that doesn’t change the fact that it implicitly concedes that other employers who refuse, for religious reasons, to provide health insurance that covers contraceptives are likewise engaged in an “exercise of religion.”
In short, it’s clear, for purposes of RFRA, that a person engages in an “exercise of religion” when he, for religious reasons, refuses to provide health insurance that covers contraceptives and abortifacients.
Lysander
February 11th, 2012
10:25 am
Oscar – thank you for pointing out my imprecision. I’ll try again.
*The ACA (and related mandates) requires the Catholic Church to act in a way that is contrary to its religious beliefs.
I don’t seek to speak for Individual Catholics, and could not do so. However, the Church’s position on this issue is pretty clear.
In any event, the main premise of my comment is that Scalia’s prior opinions are distinguishable from the present issue. On account of the fact that the mandate requires a religious institution to act (and doesn’t proscribe an individual from acting), Scalia, if he pens an opinion on the issue this summer, will easily be able to avoid the same conclusion if he so chooses.
I remember
February 11th, 2012
2:14 pm
If Obama and the liberals can jam this new mandate down the throats of millions of people in America just becasue it’s politically expedient for them to fire up their base of support, what is to keep the collectivist Obama from requiring financial support for assisted suicide too.?How about infanticide? Euthanisia?
We have birthed a monster.
Are there no limits to this despot’s power?
Oscar
February 11th, 2012
2:57 pm
My overall point of view is that no employer should be required to provided health insurance of any kind to its employees. we need to get away from employers providing health insurance to employees. There are better ways for us to have access to medical care in this country.
Oscar
February 11th, 2012
2:58 pm
what is to keep the collectivist Obama from requiring financial support for assisted suicide too.?
Congress.
Kamchak
February 11th, 2012
3:43 pm
If Obama and the liberals can jam this new mandate down the throats…
I have found that those who complain the most about having something jammed down their throats, are the same one who will swallow anything.
Just sayin’.
David Green
February 11th, 2012
8:59 pm
Jay…
Both you and Scalia have it wrong. As the federal govt. nor the states have the right to force any church, religious organization or individual to violate their/his conscience. Unless of course they are receiving funding from the aforementioned federal govt. or state; all the catholic church needs to do is give up the public funding it receives {which is a breach of the wall of separation between the church and the state} then the leadership would be justified in excommunicating any and all politicians and employees of the federal and state govt. who are members of the catholic church.
On the other hand If the state has the right to interfere in the natural right to contract a marriage of its citizens in any form or fashion then it stands to reason that the state also has the right to decide who one marries as well. So that in reality what you and Scalia are defending in regards to polygamy is to put it simply tyranny – which always invites and justifies violent rebellion against the state.
This is why I remain independent politically by refusing to be a liberal democrat or a conservative republican as I will have no part of any group that claims to have the right to impose its will upon individual members of the community at large.
David Green
February 11th, 2012
9:04 pm
Oscar without the medical insurance employers provide their employees the health care industry would collapse in a matter of days.
Oscar
February 11th, 2012
9:39 pm
David =
To be replace by something else. Open market purchase of individual policies. Singal payer system. Medicard for everyone. Or a combination of all three. Each would be an emprovement over what we have.
AdamAnt as Kamchuck during getalife
February 11th, 2012
11:11 pm
You people are all wrong. GOD will not be mocked. Does the US Constitution mean anything to any of you people anymore? Jay you included.
Cory
February 12th, 2012
2:59 am
Jay,
A few problems with your analysis come to mind. First, Employment Division v. Smith was about a generally applicable CRIMINAL law. The Contraceptive law at issue here is not criminal. Second, most relevant case to the current controversy actually is NOT United States v. Lee; rather, it is Gonzales v. O Centro Espirita Beneficente Uniao do Vegetal, 546 U.S. 418 (2006).
In that case, a unanimous Court rejected the Government’s argument that granting to a church a religious exemption under the Free Exercise Clause would undermine the Government’s need for uniformity in enforcement of the Controlled Substances Act. This is because Congress enacted RFRA (Religious Freedom Restoration Act) in response to Employment Division to effectively overturn the Court’s decision (the opinion authored by Justice Scalia), which you fondly quote above.
Because of RFRA, a general governmental interest in applying a law uniformly, by itself, no longer justifies a substantial burden on religious exercise. RFRA requires the Government to demonstrate how its compelling interest is satisfied by enforcing the challenged law against the particular person (or religion in the contraceptive case) requesting an exemption. Here is the language stating why United States v. Lee (a case decided before Employment Division and before Scalia was even a member of the Court) is not on point:
“The Government points to some pre-Smith cases relying on a need for uniformity in rejecting claims for religious exemptions under the Free Exercise Clause, but those cases strike us as quite different from the present one. Those cases did not embrace the notion that a general interest in uniformity justified a substantial burden on religious exercise; they instead scrutinized the asserted need and explained why the denied exemptions could not be accommodated. In United States v. Lee, 455 U.S. 252 (1982), for example, the Court rejected a claimed exception to the obligation to pay Social Security taxes, noting that “mandatory participation is indispensable to the fiscal vitality of the social security system” and that the “tax system could not function if denominations were allowed to challenge the tax system because tax payments were spent in a manner that violates their religious belief . . . . These cases show that the Government can demonstrate a compelling interest in uniform application of a particular program by offering evidence that granting the requested religious accommodations would seriously compromise its ability to administer the program.”
“Here the Government’s argument for uniformity is different; it rests not so much on the particular statutory program at issue as on slippery-slope concerns that could be invoked in response to any RFRA claim for an exception to a generally applicable law. The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody.”
It all comes down to how the government defines its compelling interest in making contraceptives available through Catholic Hospitals, Employers, or their Insurance Cos.
And Justice Scalia is right: a generally applicable CRIMINAL LAW does not excuse one from failing to comply because his religious beliefs conflict with the law. So again, while you made some interesting points, there are also some interesting problems with those points.
Kamchak
February 12th, 2012
12:33 pm
GOD will not be mocked. Does the US Constitution mean anything to any of you people anymore?
GOD wrote the U.S. Constitution?
Once again I am amazed by what I learn here on a daily basis.
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February 13th, 2012
1:21 pm
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