Antonin Scalia’s polarizing religious decision in 1993 seems ready for the chopping block. The Supreme Court justice wrote a decision that limited the free exercise clause of religion. Dr. Sally Gordon, a constitutional scholar from the University of Pennsylvania says court watchers expect this decision to eventually be reversed.
GT: It seems like there was another case involving Antonin Scalia that you talked about that kind of counteracted the Brennan opinion. Is that right?
Sally: It did. It really cut it way back. So, that’s a perfect illustration of how uncertain our case law is, because it’s now getting ready for the guillotine. Justices have announced that they want to reverse it, and it looks like it may well go. In 1990, Antonin Scalia, who really was not a fan of the Free Exercise Clause, although he was a deeply religious man, he held that two Native Americans who had engaged in peyote rituals in Oregon and been fired from their jobs for doing so, did not have a right to collect unemployment insurance. The first case that really protected religious liberty in a profound way, was called Sherbert against Werner and that was decided in 1963, just like Abington School District. William Brennan wrote the majority opinion in Sherbert against Werner and said that a woman who refused to work on a Saturday, (she was a Seventh Day Adventist,) who was fired from her job for refusing to work on a Saturday, [she] deserved to get unemployment insurance, so a case very similar to the one involving the peyote rituals and being fired and all they wanted was unemployment insurance.
Sally: What Scalia said is, “Listen, if there’s a neutral and generally applicable law and it’s been applied to you, you’re out of luck. Sorry, you need another right.” You need another right. It could be speech. It could be [something else.] And so, many, many scholars and lawyers began drastically retrenching. It was a very unpopular opinion. Congress was so ticked off at this, that Scalia had virtually undone the Free Exercise Clause, that they passed a law called the Religious Freedom Restoration Act in 1993, trying to reverse Scalia’s opinion.
GT: Oh, wow.
Sally: Yes, and it went back. There was a case involving a church in Texas that went back up to the Supreme Court. In 1997, the Supreme Court held that, as applied to the federal government, the Religious Freedom Restoration Act is unconstitutional. So, it took a while. But, about five years later, Congress passed a new law called the Religious Land Use and Institutionalized Persons Act, that is to protect people confined in insane asylums, prisons, and other institutional settings, as well as land use. So, one of the things you see, for example, in many suburbs, or in urban renewal in city centers, is they’ll prohibit churches or synagogues from locating there, in part, because they don’t pay taxes. And, in part, because they don’t produce reliable traffic. They’re episodic. So, there’s good city planning reasons not to allow that. But, it’s pernicious. It’s really pernicious.
GT: A city planner could say, “I don’t like the Mormons. we’re not going to let you go to church here,” or the Jehovah’s Witnesses, or the Scientologists.
Sally: They wouldn’t really say it that way. They’d say things like, soup kitchens are not a good idea for a flourishing downtown area. We don’t want people sleeping under quilts that you have to step over to get to the restaurant. That that’s how they put it, and I think that’s how they’d mean it. It’s very rare to see anyone sort of act that way. The case I’m thinking of that that did feature something like that is a case called Church of Lukumi Babalu versus Hialeah, and it was it’s connected to the Mariel boatlift, which brought over a lot of practitioners of Santeria, which involves animal sacrifice. Santeria practitioner’s had kept quiet for a long time. But, they announced in the early 1990s, that they were planning to build a church in the City of Hialeah.
Sally: This was a substantially Cuban versus Cuban battle. So, the Orthodox Catholics brought in a priest to tell the city council about how bad this is. The city council said things like, “Oh, we don’t want those voodoo nuts practicing here.” So, it was all over the place, and you see that sometimes in that kind of internal debate. You see it sometimes with eruvs. Do you know what those are? So, for Orthodox Jews to carry on the Sabbath, they have to be within a certain sacred space. Generally, a very thin wire will get the job done, often strung on utility poles or other poles or light poles. You’ll see, for example, towns resisting an eruv, because they point to other towns where an eruv went up and the Orthodox took over and everybody else moved out. That’s often an internecine fight among reform and conservative Jews and Orthodox Jews. So, you can see that kind of targeting of a specific religion, in that case. But, really, it’s more about, do we want soup kitchens or outdoor feeding of the poor, in a downtown area when we’re really trying to bring in, oh, I don’t know, Starbucks, or fancy restaurants and so on.
GT: Okay. All right. So, the Scalia decision seemed to pull back on some of the expansion of religion. Is that right?
Sally: Or expansion of religious rights. But, I think it’s fair to say and I really want to emphasize this, the rule in Free Exercise cases is plaintiff loses. The Free Exercise Clause is not a happy place.
What do you think of Scalia’s opinion on the free exercise clause? Do you agree? Should Scalia’s decision better protect religious liberty? Check out our conversation….