In April, Justice Antonin Scalia led a majority of the Supreme Court in a revolutionary decision that a lead editorial in the Los Angeles Times called "pure legal adventurism."
Until Employment Division v. Smith -- the "peyote case" -- reached the conference room of the justices, it had been briefed and argued before the court on the issue of whether Oregon could show a "compelling state interest" as a reason for denying two Native American drug counselors unemployment compensation after they had been fired for using peyote in religious ceremonies.
As in previous cases, both sides expected that the Free Exercise of Religion clause in the First Amendment would prevail unless the state of Oregon could show compelling need to override that religious liberty. (As, for instance, a compelling state interest in enforcing health and safety laws in religious schools.)
A majority of the court, however, decided that this high standard of proof required of the state is a "luxury" this nation of so many religions cannot afford. The new Scalia rule is that if a state law applies to everyone, is valid and is not directed at a specific religion, the state needs to prove nothing more to enforce it.
Those religious groups and individuals who feel torn between obeying the law and following their religious conscience are free, said Scalia, to go to the legislature for exemptions. He was sharply reminded by Justice Sandra Day O'Connor that "the First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility."
The Supreme Court may not have the last word on whether the Free Exercise Clause will expire. A bill, the Religious Freedom Restoration Act, has been introduced in the House by Rep. Stephen Solarz (D-N.Y.) -- with Senate sponsors on tap -- that would reverse the Supreme Court's near extinction of the Free Exercise Clause.
The House sponsors -- and the bill's supporters outside -- are remarkably ecumenical. For instance, William Dannemeyer (R-Calif.), Don Edwards (D-Calif.), Barney Frank (D-Mass.), Newt Gingrich (R-Ga.). Among the organizations working for the bill are Agudath Israel of America, (an Orthodox group), the American Jewish Congress, the American Civil Liberties Union, Americans United for Separation of Church and State, the Baptist Joint Committee on Public Affairs, the National Association of Evangelicals and the Native American Church of North America.
The bill brings back the requirement that a state must show compelling interest in restricting the exercise of religious beliefs. The proposed statute is not likely to be voted on until the new Congress. But can Congress overturn an interpretation of the First Amendment by the Supreme Court? The argument -- by, among others, Douglas Laycok, a University of Texas law professor specializing in religious liberty -- centers on the 14th Amendment.
Section 5 of that enlarging amendment says that "the Congress shall have power to enforce, by appropriate legislation, the provisions of the amendment." And since the Bill of Rights has been made applicable to the states through incorporation into the 14th Amendment, the Free Exercise Clause of the First Amendment is among those protections that Congress has the power to enforce in order to prevent its violation by a state.
For example, there was a time when -- after the Supreme Court had ruled unanimously in 1959 that English-language literacy requirements for voting did not violate the 14th Amendment -- Congress passed a section of the 1965 Voting Rights Act overriding just such a statute in New York State. And in 1966 (Katzenbach v. Morgan), the Supreme Court upheld what Congress had done.
Meanwhile, because of the Scalia insurrection, the Amish in Minnesota have suffered a free exercise defeat. In religious objection, they had refused to affix a garish orange triangle to their black buggies as required of all the slow-moving vehicles by state law.
The Minnesota Supreme Court agreed with the Amish that silver reflector strips would do just as well. But the United States Supreme Court has now sent the case back to Minnesota in light of the Employment Division v. Smith "peyote" decision.
The religious principles of the Amish have now become a "luxury" in this land.