In a certain country: One city told a Catholic church where to put its altar. Another zoned a storefront church out of its only affordable location. A school board forced a Muslim teacher to choose between her job and the traditional robes required by her religion. A court denied compensation to the heirs of a Jehovah’s Witness who refused a blood transfusion after an auto accident. Another court equated churches’ legal rights with those of pornographic movie houses.
Instead the Court dumped the “compelling interest” test altogether, and ruled that almost any “law of general applicability” applies to religions and churches, regardless of how it affects their beliefs. State or federal lawmakers can make exemptions if they so choose–conscientious objection to the military draft is one–but the Court now says the U.S. Constitution doesn’t require any. (“That’s absurd,” says local ACLU staff attorney Jane Whicher. “If a religion has enough political clout, they get their free-exercise right–if not, they don’t.”)
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How the Court proceeded was bad enough. The arguments it used–in an opinion authored by former University of Chicago law professor Antonin J. Scalia–were worse. William P. Marshall, who teaches law at Case Western Reserve University, and who agrees with the Court’s result, has nonetheless written that its ruling “exhibits only a shallow understanding of free exercise jurisprudence and its use of precedent borders on fiction. . . . [It] is also a paradigmatic example of judicial overreaching.” In his article Marshall sought “to defend Smith’s rejection of constitutionally compelled free exercise exemptions without defending Smith itself.”
“Consider the fact that employment discrimination laws could force the Roman Catholic Church to hire female priests, if there are no free exercise exemptions from generally applicable laws. Or that historic preservation laws could prevent churches from making theologically significant alterations to their structures. Or that prisons will not have to serve kosher or hallel food to Jewish or Moslem prisoners. Or that Jewish high school athletes may be forbidden to wear yarmulkes and thus excluded from interscholastic sports. Or that churches with a religious objection to unrepentant homosexuality will be required to retain an openly gay individual as church organist, parochial school teacher, or even a pastor. Or that public school students will be forced to attend sex education classes contrary to their faith. Or that religious sermons on issues of political significance could lead to revocation of tax exemptions. Or that Catholic doctors in public hospitals could be fired if they refuse to perform abortions. Or that Orthodox Jews could be required to cease and desist from sexual segregation of their places of worship.
