Justice Scalia and the Contraception Debate

There is a book floating around about the ]] in this country. You should pick it up… Until then, check out this 1990 Supreme Court Case:

Justice Antonin Scalia, writing the majority decision in Employment Division v. Smith:

We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.


When followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity.


That last part is the kicker… If the statute allows that other hospitals or institutions which serve the common good, profit or non-profit, must follow certain rules, such as insurance coverage for birth control, then even those who exercise moral prohibitions against such results of the statutes will be required to obey the statues.

Good stuff…

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4 Replies to “Justice Scalia and the Contraception Debate”

  1. Which is precisely why religious groups find themselves in difficulty. But from my contrarian perspective no court liberal or conservative will tell me I have to violate my religious conscience because of the wishes of the state. They can throw me in jail first.

  2. Employment Division v. Smith was a extremely controversial 5/4 Decision when it came out and remains so to this day.

    The Justices that came on the Bench seem cool to it a certain degree. Breyer in fact a couple years after this case was decided argued in a concurence dealing with the Freedom of Religion Restoration act said he would not mind arguing about if the case was correctly decided. Of course the Briefs before the Court did not raise that point so it was not.

    Since then the Lower Courts espcially on the State level have seemed to try to limit this case. See a recent example “Failure of General Applicability in Iowa Road Protection Ordinance ”


    At that link is The Taming of Employment Division v. Smith


    I think there is a lot too this Taming Argument. Some big supporters of the Smith Cases were dismayed that the Court went to such pains to almost ignore Smith

    I suspect the newer Justices Alito , Breyer , Roberts ( and can’t gage the most recent edition) don’t seem to be fans. If that is the case we might be seeing what has become a Hallmark of the Roberts Court. Not an outright rejection and overturning of a prior case but so limiting the precedent that it becomes much less a Precedent.

    Smith is still out there of course but it will be interesting to see if and when this case goes to COurt if Smith shall be tamed further

    1. One of the major issues with this idea of religious liberty is that it is often times a myth. Religion has been used by the Government for a long time to do different things…

      May I suggest Politics of Witness… I don’t know who’s it by just yet… but it makes a great read… and if you have a kindle, let me know. I’ll send you a copy.

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