Monday, March 30, 2015

In which I admit I'm still confused by RFRA

If I could just index these posts by picture....

Antonin Scalia wrote the majority opinion in Employment Division v. Smith (or, as Slacktivist calls it, which I get via NTodd, "Oregon v. Smith.").  The Court held that consumption of peyote was not privileged under the 1st Amendment, and that, we are told, led to RFRA.

Now I happen to be of the opinion that the Supreme Court is mostly a looney bin which comforts the comfortable and afflicts the afflicted, and the Warren Court of blessed memory was the anomaly, not the rule, in American history (just as we have been living through an anomalous era in which church attendance has become the overwhelming norm).  But I'm still not sure where Scalia was wrong (arguments against me gratefully accepted in comments below).  One thing I do know:  Slacktivist is a poor legal scholar.

Oregon v. Smith was a big departure from precedent and tradition. Think back to the Prohibition Era, when the country actually rewrote the Constitution in order to outlaw alcohol. But even at the height of Prohibition, neither the courts nor the public thought that ought to apply to the sacramental wine that was an essential component of the religious practice of millions of American Christians. But Scalia’s argument in Oregon v. Smith veered off from that earlier way of thinking. 

Um, no, there was no "thinking" on the part of the courts or the public about this.  The Volstead Act, which implemented the 18th Amendment (much as the Voting Rights Act implemented the 15th Amendment) explicitly excluded sacramental wine from its prohibition.  The courts and the public (except through their elected representatives) had nothing to do with it.  There was no "earlier way of thinking" represented by Prohibition from which Scalia could veer off.  In fact, Prohibition itself was the "veering off" of the earlier way of thinking.  The exceptions in the law were merely a practical political consideration.  The other statutory exception was whiskey "for medicinal purposes," which is how that phrase entered American culture, and lingers in some corners to this day.

And here's the irony of the situation, as created now in Indiana:

(a) Although a State would be "prohibiting the free exercise [of religion]" in violation of the Clause if it sought to ban the performance of (or abstention from) physical acts solely because of their religious motivation, the Clause does not relieve an individual of the obligation to comply with a law that incidentally forbids (or requires) the performance of an act that his religious belief requires (or forbids) if the law is not specifically directed to religious practice and is otherwise constitutional as applied to those who engage in the specified act for nonreligious reasons.... The only decisions in which this Court has held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action are distinguished on the ground that they involved not the Free Exercise Clause alone, but that Clause in conjunction with other constitutional [p873] protections. ....

(b) Respondents' claim for a religious exemption from the Oregon law cannot be evaluated under the balancing test set forth in the line of cases following Sherbert v. Verner, 374 U.S. 398, 402-403, whereby governmental actions that substantially burden a religious practice must be justified by a "compelling governmental interest." That test was developed in a context -- unemployment compensation eligibility rules -- that lent itself to individualized governmental assessment of the reasons for the relevant conduct. The test is inapplicable to an across-the-board criminal prohibition on a particular form of conduct. A holding to the contrary would create an extraordinary right to ignore generally applicable laws that are not supported by "compelling governmental interest" on the basis of religious belief. Nor could such a right be limited to situations in which the conduct prohibited is "central" to the individual's religion, since that would enmesh judges in an impermissible inquiry into the centrality of particular beliefs or practices to a faith. .... Thus, although it is constitutionally permissible to exempt sacramental peyote use from the operation of drug laws, it is not constitutionally required. Pp. 882-890.

The key point there is "compelling governmental interest."  That's where anti-discrimination laws get upheld; there is a compelling governmental interest is not permitting discrimination on the basis of race, gender, national origin, or religion.  Which should mean I can't refuse to serve a Roman Catholic in my place of business if I'm, say, MO Synod Lutheran (the official position of the denomination is that Rome is the whore of Babylon).  Or does it?

PENCE: Well, let -- let me explain to you, the purpose of this bill is to empower and has been for more than 20 years, George. This is not speculative. The purpose of this legislation, which is the law in all 50 states in our federal courts and it's the law by either statute or court decisions in some 30 other states, is very simply to empower individual when they believe that actions of government impinge on their constitutional First Amendment freedom of religion. And, frankly, George, there's a lot of people across this country who -- you're looking at ObamaCare and the Hobby Lobby decision, looking at other cases, who feel that their religious liberty is being infringed upon and -- and The Religious Freedom Restoration Act at the federal level and all the states now, including Indiana, who have it, are simply about addressing that.
And again, if my religious freedom to discriminate against Catholics ( or Jews, or blacks, or what-have-you) is infringed upon, isn't it a restoration of my religious freedom to let me discriminate against the members of such groups?  Or is the problem only the "avalance of intolerance" that is gay marriage?

PENCE: George, look, the issue here is, you know, is tolerance a two way street or not? I mean, you know, there's a lot of talk about tolerance in this country today having to do with people on the left. And a -- but here Indiana steps forward to protect the constitutional rights and privileges of freedom of religion for people of faith and families of faith in our state and this avalanche of intolerance that's been poured on our state is just outrageous. You've been to Indiana a bunch of times. You know it. There are no kinder, more generous, more welcoming, more hospitable people in America than in the 92 counties of Indiana.

I had to quote it because You Can't Make This Stuff Up.  And, again, Loving v. Virginia didn't create an "avalanche of intolerance," but federal court decisions on gay marriage has.  I guess.

Not that Gov. Pence is any greater a legal scholar than Slacktivist; but he does seem to understand the intent of Indiana law pretty clearly.  And yeah, it is (or should be) indefensible as a matter of law.  Because the irony is, Indiana and Gov. Pence are making the case Justice Scalia made in Smith: they want to enmesh judges in an "impermissible inquiry into the centrality of particular beliefs or practices to a faith."  Although that seems to be the logical outcome of the holding in Hobby Lobby.  Or rather, I don't quite see why it can't be; it isn't, as Justice Scalia said in Smith, the required outcome; but I can see where it is the logical one, especially because it is being used that way ("Duh!").  And I still think the solution is to fix RFRA.

But I'm not holding my breath on that happening....

P.S.  Is the Indiana law meant to enshrine discrimination against "the gay."  No question about it, even without the bizarre statements of Gov. Pence:

Indiana’s is the only law that explicitly applies to disputes between private citizens.


... the Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

The new Indiana statute also contains this odd language: “A person whose exercise of religion has been substantially burdened, or is likely to be substantially burdened, by a violation of this chapter may assert the violation or impending violation as a claim or defense in a judicial or administrative proceeding, regardless of whether the state or any other governmental entity is a party to the proceeding.” (My italics.) Neither the federal RFRA, nor 18 of the 19 state statutes cited by the Post, says anything like this; only the Texas RFRA, passed in 1999, contains similar language.
Which makes that "avalanche of intolerance" that has been poured onto Indiana look quite a bit different.  It is also clear this state law is the child of Hobby Lobby: the family resemblance is unmistakeable.


  1. P.S. Is the Indiana law meant to enshrine discrimination against "the gay." No question about it, even without the bizarre statements of Gov. Pence:

    No question indeed.

  2. This is an issue that I've always been somewhat interested in because of my old involvement in a Peyote religion case. In my one trip to the Fifth Circuit they reversed the dismissal of my case on the basis that genuine religious conviction may, in the right circumstances, require even the setting aside of criminal drug laws.

    Mr. Justice Scalia, in the Smith case, blew that old understanding of religious freedom out of the water, in an opinion so outrageous that Republicans and Democrats, in a rare show of near-unity, reinstated, by statute, the old standard in the Religious Freedom Restoration Act.

    It now looks like Scalia has won the "progressives," and the Republicans seem not far behind. There are differences between the federal statute and the state "me-too's," but I don't see them as terribly material. The prospect of boycotting Indiana for passing a law substantially similar to current governing federal law--a law which essentially states the principle of religious liberty as I learned it at law school from Archibald Cox--compels me to repeat one of your favorite phrases: "I'll retire to Bedlam."

    And of course corporations have religion; and we all know what they worship.

  3. "And of course corporations have religion; and we all know what they worship."

    And to THAT end, same-sex $ OUGHT to be the same as opposite-sex $. But the "Barronelle Stutzmans" of this country have determined they're not, So Here We Are.

    If anyone's going to make equivalences to Oregon v Smith, it OUGHT to be "Indians want to use peyote" and "Gays want to get married", NOT "Indians want to use peyote" and "Barronelle Stutzman does NOT want to provide flowers-for-gays". Using for self and denying for others are qualitatively different, in my completely ill-legal opinion! ;-X

  4. The prospect of boycotting Indiana for passing a law substantially similar to current governing federal law

    Um...I guess you missed the part where it is substantially similar except for the major part that isn't...

  5. Fred Clark (Slacktivist) has responded with what he thinks Scalia did wrong in this post.

    Obviously it is best to read the entire thing for context, but here is an excerpt:

    The bonkers bit — the outrage-inducing component there — is that little qualifying word “all.” Here’s the full sentence, the conclusion and culmination of Scalia’s argument:

    It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

    Religious minorities are screwed. The courts won’t help them and their only recourse is to somehow convince the majority to vote for laws that will allow them the same rights the majority enjoys. Good luck with that.

    [snip] Scalia wrote that the courts will not “weigh the social importance of all laws against the centrality of all religious beliefs.” But they will weigh laws against the centrality of some religious beliefs. They regularly do so. They pretty much constantly do so. What’s outrageous here is that Scalia is saying, explicitly, that the courts can and will and should treat “religious practices that are not widely engaged in” differently than those same courts will treat religious practices that are widely engaged in.