Will Antonin Scalia Dismiss What He Used to Say about the Law and Religious Freedom?

As the U.S. Supreme Court today considers whether requiring employer-provided health insurance to include coverage for birth control violates employers’ religious freedom, Talking Points Memo looks at what right-wing Justice Antonin Scalia wrote in an earlier case:

In 1990, Scalia wrote the majority opinion in Employment Division v. Smith, concluding that the First Amendment “does not require” the government to grant “religious exemptions” from generally applicable laws or civic obligations. The case was brought by two men in Oregon who sued the state for denying them unemployment benefits after they were fired from their jobs for ingesting peyote, which they said they did because of their Native American religious beliefs.

“[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.”

He went on:

“To permit this 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.”

To all of which, we say: “Yes.” But Scalia bitterly opposes the Affordable Care Act and President Obama generally. So no one will be surprised if he chooses to ignore what he has written in the past.

The outcome of the two cases the Supreme Court is hearing today — Sebelius v. Hobby Lobby Stores, Inc., and Conestoga Wood Specialties Corp. v. Sebelius — could redefine religious freedom by allowing employers to impose their personal religious beliefs on workers. The cases are also a reminder of why courts matter and why conservatives have worked so hard to keep federal court seats vacant during President Obama’s tenure in office.