Roanoke Times
Copyright (c) 1995, Landmark Communications, Inc.
DATE: MONDAY, April 23, 1990 TAG: 9004210438
SECTION: EDITORIAL PAGE: A7 EDITION: METRO
SOURCE: GEORGE F. WILL
DATELINE: LENGTH: Medium
Two Oregon men, both Native Americans, were fired from their jobs and denied unemployment benefits because they ingested the hallucinogen peyote as a traditional sacrament of the Native American Church. Oregon law bans all use of peyote, which is made from cactus. The men argued that this violated the First Amendment ban on laws "prohibiting the free exercise" of religion.
Citing precedents running back to the 1879 court ruling affirming the constitutionality of laws banning the Mormon practice of polygamy, Scalia wrote: "We have never held that an individual's religious beliefs excuse him from complying with an otherwise valid law prohibiting conduct the state is free to regulate."
Oh? In 1972, the court held that a member of the Old Order Amish religion was exempt, on free-exercise grounds, from complying with Wisconsin law requiring parents to send their children to school until age 16. Scalia's argument that this 1972 ruling is compatible with the principle he now asserts is unconvincing.
However, Scalia, joined by Chief Justice Rehnquist and Justices White, Stevens and Kennedy (O'Connor concurred in the result but not the reasoning), is correct on this point: The court has often held that the right of free exercise does not relieve a citizen of an obligation to comply with "a valid and neutral law of general application (a law not aimed at the promotion or restriction of religious beliefs) on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)." Note the word "conduct."
In addition to the polygamy ruling, Scalia cites rulings upholding laws that require, in spite of religiously motivated objections, payment of taxes, compulsory vaccination and other conduct. Scalia says free-exercise protection is not violated if the burdening of religiously motivated conduct is an "incidental effect" of a valid law.
Justice Blackmun, joined in heated dissent by Justices Brennan and Marshall, charges plausibly that the court has now overturned precedents pertaining to the Constitution's religion clauses. The court has indeed often asserted an indissoluble link between some religious conduct and belief, and has required government to satisfy exacting tests about a "compelling interest" before allowing laws to interfere with religiously motivated conduct.
Scalia should have forthrightly said that the 1972 Old Order Amish decision was mistaken. He could have invoked the support of the patron saint of libertarians - Saint Thomas. No, not Thomas Aquinas - Thomas Jefferson. To understand the philosophic pedigree of Scalia's sensible position is to understand the cool realism and secularism of the philosophy that informed the Founders.
A central purpose of America's political arrangements is the subordination of religion to the political order, meaning the primacy of democracy. The Founders, like Locke before them, wished to tame and domesticate religious passions of the sort that convulsed Europe. They aimed to do so not by establishing religion, but by establishing a commercial republic - capitalism. They aimed to submerge people's energies in self-interested pursuit of material comforts.
Hence religion is to be perfectly free as long as it is perfectly private - mere belief - but it must bend to the political will (law) as regards conduct. Thus Jefferson held that "operations of the mind" are not subject to legal coercion, but that "acts of the body" are. Mere belief, said Jefferson, in one god or 20, neither picks one's pockets nor breaks one's legs.
Jefferson's distinction rests on Locke's principle (Jefferson considered Locke one of the three greatest men who ever lived) that religion can be useful or can be disruptive, but its truth cannot be established by reason. Hence Americans would not "establish" religion. Rather, by guaranteeing free exercise of religions, they would make religions private and subordinate.
Twenty-three states and federal law exempt the religious use of peyote from prohibitions, and Scalia indicates sympathy for that policy. However, he rightly insists it is not constitutionally obligatory.
The Founders favored religious tolerance because religious pluralism meant civil peace - order. Thus Scalia is following the Founders when he finds the limits of constitutionally required tolerance of "free exercise" in the idea that a society is "courting anarchy" when it abandons the principle stated in the 1879 ruling: "Laws are made for the government of actions." If conduct arising from belief, not just belief itself, is exempt from regulation, that would permit "every citizen to become a law unto himself."
Scalia's position is not only sound conservatism, it is constitutionally correct: It is the intent of the Founders. Washington Post Writers Group
by CNB