Scalia, J., dissenting: a fragment on religion.

Author:Carter, Stephen L.
Position:Supreme Court Justice Antonin Scalia

[Author's Note: This unpublished opinion was supposedly found among the papers of the late Justice Antonin Scalia. I cannot say with authority that the supposition is true. Whatever its source, the opinion is plainly a draft. The argument contains certain doctrinal inconsistencies, and the prose does not entirely possess the stylishness for which the late Justice was known. Probably additional flourishes were to be added later. In addition, although there are references to the majority's argument, there is no Supreme Court opinion that matches up with the dissent's criticism. It is not clear whether the draft was even connected to any particular case-or, as I say, whether it is authentic at all. From internal evidence, the dissent appears to assume that the petitioners are challenging certain religious accommodations, that the government respondents are defending them, and that the intervenors argue that the accommodations do not go far enough. But I am only guessing. I am grateful for the research assistance of Sam Adkisson. Copyright 201/ by Stephen L. Carter.]


The Court today continues its reckless assault on the principle of religious freedom enshrined in the First Amendment. Because I believe that the Constitution contains no more important clause, and because I consider every encroachment on religious liberty an encroachment on democracy itself, I dissent.


Our jurisprudence on the religion clauses of the First Amendment is famously opaque. But instead of clarifying the law, the Court today makes itself the obfuscator of last resort. (1) Without ever offering a serious argument, the majority today holds unconstitutional a set of seemingly reasonable accommodations of religion that appear in the laws of a number of states. True, the accommodations before us are controversial, and they even provoke in some corners considerable ire, but neither of these concerns is of the mildest constitu-constitutional moment. Appointment to the Supreme Court of the United States is not the same as entrance in a popularity contest. No sane citizen would want things any other way. (2)

Today's decision is but another in a long line of cases in which this Court fundamentally misunderstands the Establishment Clause. (3) The clause, as I have argued in the past, was never intended to prevent the Government from conferring on religious persons and organizations a reasonable set of privileges not available to the irreligious. (4) On the contrary: "Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality." McCreary County v. American Civil Liberties Union of Kentucky, 545 U.S. 844, 877 (2005) (Scalia, J., dissenting). Of course the Government is free in most cases to choose not to grant preferential treatment to religion. The question is whether a "mandatory choice... has been imposed by the United States Constitution." Lee v. Weisman, 505 U.S. 577, 645 (1992) (Scalia, J., dissenting). The only sensible answer is no.

The Government can and does treat religion as special, because the American people can and do treat religion as special. The state may not discriminate among religions, and a favor available to one must be made available to all. (5) Accommodations of the sort at issue today may be said to encourage religion in the sense that they reduce the cost to the believer of believing. But a state can make a rational judgment that it is better off with a larger rather than a smaller number of religious believers, as long as it manifests an indifference to which religion they believe.

The majority in its Establishment Clause jurisprudence has not quite become yet another "ad hoc nullification machine," Madsen v. Women's Health Center, Inc., 512 U.S. 753, 785 (1994) (Scalia, J., concurring in the judgment in part and dissenting in part), but that is the worrisome direction in which we may be moving. The Court has come to view with suspicion even the most moderate legislative effort to balance the desires of millions to live according to what they think God commands with the growing intrusiveness of the administrative state. Neither the text nor the history of the Establishment Clause supports such an approach. Certainly the Founders encouraged religious belief, believing it essential to the proper functioning of democracy. (6) Not even those among the Founding Generation who demanded anti-establishment language in the federal Constitution doubted the authority of the state to support and encourage religion generally. (7) The accommodations at issue here do little more. "Nothing stands behind the Court's assertion that governmental affirmation of the society's belief in God is unconstitutional except the Court's own say-so, citing as support only the unsubstantiated say-so of earlier Courts going back no farther than the mid-20th century." McCreary County v. ACLU of Kentucky, supra, at 889 (Scalia, J., dissenting).

Beyond that brief summary of the essence of my position, I will not swell the United States Reports with repetition of what I have said before. (8) I should note, however, that I am perplexed by the constant blather to the effect that such a position would disadvantage minority religions. Oddly, no one says just how. What surely hurts minority religions more is a callous neutrality that leaves them to the political process to protect ways of life that may be under threat. (9) Consider the case before us. Stripped of the frills, we are presented with

[Author's Note: Here there is a gap. Presumably Justice Scalia (or whoever wrote these pages) intended to fill in the facts of the case later.]

It is true that the statutory accommodations at issue offer benefits to the religious that others do not receive. The majority warns that such accommodations must be viewed with skepticism because they grant an illegitimate preference to religion. Ante, at __. Alas, the Court has never offered anything but its own ipse dixit in support of the proposition that the government cannot prefer religion over non-religion. The parade of impressively scary adjectives with which the majority describes imagined dangers of the contrary rule, ante at __, adds nothing to the argument. This should be unsurprising, given that the contrary rule is in fact the right one: "there is nothing unconstitutional in a State's favoring religion generally." Van Orden v. Perry, 545 U.S. 677, 691 (2005) (Scalia, J., concurring). The accommodations at issue here are fully within the power of the Government. They pose no threat to any value protected by the Establishment Clause. (10)


Merely establishing that the accommodations at issue are permitted by the First Amendment does not dispose of the case. Intervenors argue that the exemptions they have been granted are too narrow. The right to free exercise, they insist, demands more. In effect they contend that the rules should be written around them, rather than demanding that they demonstrate their entitlement to the exception in order to receive it. The majority rejects both arguments. According to the Court, ante, at __, accommodation is properly the work of the political branches--an ironic proposition indeed, given that six Justices have today voted to strike down precisely the accommodations that the work of those political branches produced.



Before we can decide whether the exemptions at issue are narrower than what the Constitution commands, we must first determine whether the Constitution commands any exemptions at all. The Court answers, in effect, that accommodations are mandated only in rare circumstances left unspecified. But when the burden on religious practice is "incidental" and the law in question is one of "general application," the burdened believer must seek relief from the regulator. Ante, at __. This, the majority tells us, is the only sensible reading of the Free Exercise Clause. Otherwise, we are told, the creation of "a prima facie" right to accommodation would allow challenges on religious freedom grounds to every conceivable statute or regulation. To illustrate the presumed absurdity of a broader requirement for accommodations, the Court, ante at __, invents a religion that objects to driving on the right-hand side of the road. (11) Such tomfoolery might suffice in the law school classroom, but in a court of law we should worry only about issues likely to arise.

I once reasoned as the majority does now. I joined the Court's opinions in, among others, Lyng v. Northwest Indian Cemetery Protective Ass'n, 485 U.S. 439 (1988), holding that there was no violation of Free Exercise when the Forest Service decided to develop public lands in a way that was "devastating" to a tribe's religious practices; O'Lone v. Estate of Shabazz, 482 U.S. 342 (1987), holding that reasonable penal practice trumped a Muslim inmate's need to attend a religious celebration; and Goldman v. Weinberger, 475 U.S. 503 (1986), allowing the Air Force to punish a Jewish officer for refusing to remove his yarmulke indoors. I also authored the Court's opinion in Employment Division v. Smith, 494 U.S. 872 (1989), where we held that the use of peyote in a ritual of the Native American Church was not entitled to a constitutional exemption from a state's drug laws. For disappointed religionists, the only source of relief in these cases was the legislature.

I am not prepared to conclude that all of these cases were wrongly decided. But we were mistaken in each of them to suggest that the very political branches that had chosen to ignore the religious practices now burdened were the only constitutionally permissible saviors of those same practices. Yet this has been our basic approach to Free Exercise claims for three decades. Absent evidence of patent discrimination by government against a particular religion (see, for example, Church of Lukumi Bababalu Aye v...

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