Sahil Kapur writes about Justice Scalia’s majority opinion in Employment Division v Smith, a 1989 case that involved two Native American men who were denied unemployment benefits after being fired for using peyote. They argued that this violated their religious freedom and the court rejected that argument. Scalia argued strongly that religious exemptions from generally applicable laws were not required by the Free Exercise Clause.
“[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability,” Scalia wrote in the 6-3 majority decision, going on to aggressively argue that such exemptions could be a slippery slope to lawlessness.
“The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind,” he wrote, “ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.”….
“To permit this,” he wrote in Smith, quoting from an old court decision, “would be to “To permit this,” he wrote in Smith, quoting from an old court decision, “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.”
So that means he’ll have to rule that Hobby Lobby can’t have a religious exemption from the generally applicable Affordable Care Act, right? Not necessarily. In 1993, Congress passed the Religious Freedom Restoration Act, which provides a statutory basis for such exemptions even if there is no constitutional requirement for them, and it’s on the basis of that law that Hobby Lobby is making its claim. So Scalia could be entirely consistent and still vote in favor of Hobby Lobby on statutory grounds rather than constitutional grounds.
But that’s not really the end of it either. The Freedom From Religion Foundation and several other groups have submitted an amicus brief in the case arguing that RFRA is unconstitutional because it privileges religious beliefs and gives religious people a benefit not available to the non-religious, which is pretty similar to Scalia’s previous statement that such exemptions “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.”
But here’s the problem: The government is not arguing that RFRA is unconstitutional and that was not the grounds on which the appeal was granted. This is just one of dozens of amicus briefs and it makes an argument that the parties to the case do not make. So that provides Scalia with a way to ignore their argument, since it isn’t being made by either of the parties to the case. I have little doubt he will end up ruling in favor of the religious exemption in the end.