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Chris Smith wrote the following in a thread that was locked down on the MADness board. I thought it might be fodder for an interesting discussion, by itself, with no connection to the other thread.

It's true that the Scalia Court tried to expand the power of government to violate freedom of religion by striking down the "compelling interest" rule, but fortunately Bill Clinton's Religious Freedom Restoration Act (and a variety of state-level counterparts) have largely undone the damage. So long as these laws stay on the books, you've nothing to worry about. If anything, the freedom of religion has expanded in the United States since the founding, not constricted.

Perhaps before people come jumping in with guns ablazin', it might help to read a few of the important cases and RFRA itself. Also, it is probably a good idea to understand the standards of review that the Court uses in its free exercise jurisprudence. I will set up some links for the cases and standards of review at the bottom of this post. Of course, that doesn't mean you need to read them before jumping in, but I do believe it will become quite obvious in your posts if you haven't. But so be it.

I have just a few questions for Chris before making any further judgment on the quote above.

First, what in the hell is "the Scalia Court?"

I am assuming you mean that Scalia wrote the majority opinion in Employment Division v. Smith which restored the minimum scrutiny/rational basis standard as the standard of review for most free exercise cases. Perhaps you could clarify?

If you are referring to Smith, I will just refer to this case as Smith for making things simple. (For those unaware of the procedural history behind this ruling, there is a Smith I and a Smith II. I think we only need to refer to Smith II as this thread proceeds, however. So, I will link below only to Smith II.)

Second, could you clarify this statement "...the Scalia Court tried to expand the power of government to violate freedom of religion by striking down the "compelling interest" rule..." ?

I certainly don't think that Scalia would agree with you about this, assuming I get at all what you actually mean, in the first place. The way you have worded this, it sounds like you think Scalia and the majority court were antagonistic in some way to the free exercise of religion.
When was the compelling state interest standard of review first applied in free exercise jurisprudence? What were the concerns he actually stated in the ruling for restoring the rational basis standard? Was he against the Native American Indians getting an exception to criminal drug laws?

Third, what damage was done by Smith? And how has RFRA largely undone that damage?

RFRA was struck down as unconstitutional by a later Supreme Court ruling (Boerne). No one was quite sure if it had been struck down in regards to both federal and state action. Most U.S. Circuit Courts after Boerne assumed that Boerne struck down RFRA as it applied to state government action only and proceeded accordingly.

It was quite clear in O Centro years later that such was the case. So, today as it stands, RFRA is valid law and can be used to challenge federal government action allegedly inhibiting free exercise. It does not apply to state action , and Smith controls. Where a state has its own version of RFRA, I assume a state citizen would bypass bringing a claim under the First Amendment, thus bypassing Smith, and bring it under the state RFRA statute.

Now, I think there can be reasonable difference of opinion regarding these issues. I have my own opinion, of course. I am quite sure some will disagree with it. But there is no reason that this can't be discussed without rancor.

And, besides, this would be a lot more fun to talk about than fat Mormon women, wouldn't it?

Links:

Standards of Review

Minimum scrutiny/rational basis standard of review: http://legal-dictionary.thefreedictionary.com/Rational+Basis+Test

Strict Scrutiny/Compelling State Interest standard of review: http://legal-dictionary.thefreedictionary.com/Strict+scrutiny

RFRA

http://en.wikipedia.org/wiki/Religious_Freedom_Restoration_Act

Cases

Reynolds: http://www.oyez.org/cases/1851-1900/1878/1878_0

Sherbert: http://www.oyez.org/cases/1960-1969/1962/1962_526

Smith II: http://supreme.justia.com/cases/federal/us/494/872/case.html

Boerne: http://www.oyez.org/cases/1990-1999/1996/1996_95_2074/

O Centro: http://www.oyez.org/cases/2000-2009/2005/2005_04_1084

Hey gramps,

I phrased it the bombastic way I did mainly for rhetorical purposes, to highlight the irony in my Republican antagonist's rhetoric about how expanding federal power is encroaching on religious freedom (which he implicitly blamed on the Democrats). In other words, I don't really hold any animosity toward Scalia for this. I was just turning the anti-Democrat polemic on its head. So don't take my comments there too seriously.

Having said that, I do think the "compelling interest" standard was superior to "rational basis." "Rational basis" gives the state an incredible amount of wiggle room, and renders it very difficult to bring a successful freedom of religion challenge. I basically agree with the argument laid out by Phillip Hammond in the book Religion on Trial: How Supreme Court Trends Threaten the Freedom of Conscience in America. If you're interested in the topic, I recommend giving it a read.

Chris Smith wrote:It's true that the Scalia Court

I think that shortly after his investiture onto the Supreme Court, Antonin Scalia, through force of personality and force of clearly expressed clear thinking about issues facing the Court, has become the dominant Justice on the Supreme Court, more so than either Chief Justice who has served contemporaneously with Scalia (Rhenquist or Roberts). I think it is an appropriate description to describe the era that Scalia has been on the Court as the 'Scalia Court'.

Chris Smith wrote:tried to expand the power of government to violate freedom of religion by striking down the "compelling interest" rule,

I think that when it comes to monetary freedom for the individual (e.g., finding limits to the commerce clause or upholding the freedom to contract), the conservatives on the Court (Scalia, Thomas, Alito, Roberts and Kennedy) are quite vigilant, when it comes to non-monetary freedoms (like religion and free speech), the liberals on the Court (Ginsburg, Breyer, Sotomayor and Kagan) are the vanguard for such liberties, and garner a 5 member or greater majority when even one of the conservatives recognizes the value of the liberty at stake.

Chris Smith wrote:but fortunately Bill Clinton's Religious Freedom Restoration Act (and a variety of state-level counterparts) have largely undone the damage.

I think that in the notions of federalism, the Court has appropriately held that federal legislation may not dictate how states recognize and respect freedom of religion. That is a matter for the U.S. Constitution, as applied by federal courts, to determine when a state may have crossed the line in depriving individuals of a U.S. Constitution protected liberty like freedom of religion. An amendment to the U.S. Constitution, a process that involves the states either through the ratification process or a new constitutional convention process, ought to be required for such further micro-management of the states' prerogatives, not just the federal legislation process that always includes much less public debate and deliberation. As federal legislation, the RFRA rightly limits the acts of the federal government only, in how it must honor those constitutional guarantees. It is Congress' prerogative to limit how the federal government behaves further than the limits placed on it by the U.S. Constitution; it is however a state's prerogative to decide how its state government should be further limited than the U.S. Constitution limits it. I think that in making this distinction, the Court drew an appropriate legal line.

Chris Smith wrote:So long as these laws stay on the books, you've nothing to worry about.

Well, as Congress giveth, Congress can taketh away. So I agree with Chris, that as long as the RFRA 'stays on the books', the federal courts will enforce the RFRA in how the federal government must honor religious freedom. But RFRA could be repealed by Congress at will (and the President not vetoing). So, the protections for religious liberty that go along with the RFRA depend on the outcome of the 2012 and each later election for President and/or Congress.

Chris Smith wrote:If anything, the freedom of religion has expanded in the United States since the founding, not constricted.

I wholeheartedly agree. Simply seeing the difference between the Court's decisions in Reynolds (1878) and Sherbert (1962) bear that point out.

CaliforniaKid wrote:Hey gramps,

I phrased it the bombastic way I did mainly for rhetorical purposes, to highlight the irony in my Republican antagonist's rhetoric about how expanding federal power is encroaching on religious freedom (which he implicitly blamed on the Democrats). In other words, I don't really hold any animosity toward Scalia for this. I was just turning the anti-Democrat polemic on its head. So don't take my comments there too seriously.

Having said that, I do think the "compelling interest" standard was superior to "rational basis." "Rational basis" gives the state an incredible amount of wiggle room, and renders it very difficult to bring a successful freedom of religion challenge. I basically agree with the argument laid out by Phillip Hammond in the book Religion on Trial: How Supreme Court Trends Threaten the Freedom of Conscience in America. If you're interested in the topic, I recommend giving it a read.

Hey Chris,

I see where you are coming from, I guess. And I definitely understand your need for the heightened rhetoric. The believers got RFRA and still complain. Funny stuff.

I am not sure what it means to say one standard of review is superior to another? What do you mean by that.

Anyway, I am just wondering something. Do you agree then that a court should except sincere religious believers from generally applicable laws, for example, criminal laws, because those laws burden religious practice? That was the big argument (at least one of them) in Smith and I would love to know what you think about that.

Because of RFRA, we have a strange situation out there. On the one hand, if I join the O Centro church in the states, I can legally trip my balls off with DMT brew (ayahuasca), share it even with my kids and parents (assuming they are members too), and never worry about the law coming down on me. This despite the fact that DMT is a Schedule I drug.

On the other hand, if I desire to trip my balls off on DMT brew, but fail to join the O Centro church before I do that, and am unlucky enough to run into problems with the law, I could have a felony record for the rest of my life, as well as spend some time behind bars.

That is where we are today. I can't accept that the First Amendment was intended to allow religious believers to avoid criminal laws and sanctions. Do you think that is how the First Amendment should be read?

I should also add here that I see RFRA as offending the establishment clause. I am very glad it was ruled unconstitutional, at least to states, and I hope to see it disappear one day altogether.

Perhaps it may be better to call it the Kennedy court these days?

CaliforniaKid wrote:Hey gramps,

I phrased it the bombastic way I did mainly for rhetorical purposes, to highlight the irony in my Republican antagonist's rhetoric about how expanding federal power is encroaching on religious freedom (which he implicitly blamed on the Democrats). In other words, I don't really hold any animosity toward Scalia for this. I was just turning the anti-Democrat polemic on its head. So don't take my comments there too seriously.

Having said that, I do think the "compelling interest" standard was superior to "rational basis." "Rational basis" gives the state an incredible amount of wiggle room, and renders it very difficult to bring a successful freedom of religion challenge. I basically agree with the argument laid out by Phillip Hammond in the book Religion on Trial: How Supreme Court Trends Threaten the Freedom of Conscience in America. If you're interested in the topic, I recommend giving it a read.

I think it interesting that Hammond would place the threat to freedom of conscience at the doorstep of the Supreme Court. Even in Marbury v Madison, the Supreme Court recognized that in passing legislation, Congress obviously thought it had the constitutional power to pass that specific enactment and thus should be accorded a measure of deference (in legal terminology, a rebuttable presumption) that the enactment is in fact constitutional, as the Court begins its analysis. Likewise, the Marbury Court recognized that as another equal branch of the federal government, the executive branch (the President and federal deparments/agencies) too must have concluded that it had the constitutional power to adopt the regulations and policies it has, and thus should be accorded some latitude by the Court when facing a constitutional challenge to that regulation or policy.

The federal courts are the last line of defense of constitutional liberties against encroachment, and a valuable guard those courts are for individual liberties. However, nothing requires the legislature in the first place when enacting laws, like the Patriot Act, or the executive, when choosing to prosecute for example a person for telling anyone else that he has been the subject of certain types of Patriot Act on-the-spot warrants, to use the full latitude that the Court-interpreted constitution gives the legislative and executive branches of government. The RFRA was an act of restraint by the Congress over executive actions, limiting them further than the constitution does. That is a rarity. Hammond should rue the fact that Congress and the executive branch are more often than not stretching the constitutional envelope, threatening the freedom of conscience in America. The courts only come into play and need to swat down government action (legislative or executive) when that branch has clearly failed to show constitutionally required restraint over the governing power. If its questionable whether the legislation or executive enforcement has gone too far, the courts will often defer to the fact that those other branches are equal branches of government and should be presumed to have interpreted the constitution as having given them the power to do as they did. The courts should certainly step in when necessary, but an observer like Hammond should keep in mind that if it were not for the voracious appetites of Congress and the President/executive for governance (impinging on individual rights), the courts would not become involved at all.

gramps wrote:Perhaps it may be better to call it the Kennedy court these days?

Kennedy has become more predictable than he was in the 1990s when O'Connor was yet on the Court. Kennedy still switch-hits to make 5-4 majorities, but because of the predictability, attorneys know better what buttons to press of Kennedy's in the briefing and oral argument. Other justices are actually becoming less predictable, and thus more important to the actual outcome. Kennedy is also not very persuasive with his fellow justices, not in the way that Scalia has been. Scalia's opinions and arguments have been known to change the final votes of some of his colleagues on the Court, changing the Court's decision from what it would have been based simply on the initial, post-oral argument voting.

sock puppet wrote:

The courts should certainly step in when necessary, but an observer like Hammond should keep in mind that if it were not for the voracious appetites of Congress and the President/executive for governance (impinging on individual rights), the courts would not become involved at all.

Hear! Hear! +10

gramps wrote:I should also add here that I see RFRA as offending the establishment clause. I am very glad it was ruled unconstitutional, at least to states, and I hope to see it disappear one day altogether.

gramps, I can fathom arguments and reasons that the RFRA is a law that establishes religion. But I think it is incidental only, to the greater and more primary purpose of Congress in enacting it to better ensure the free exercise of religion. I would like to have you expound on how you see the RFRA as offending the establishment clause, and if you would, address whether you think that any Congressional enactment could be made to buttress the free exercise clause without incidentally offending the establishment clause. Do you see it as a constitutional Catch-22 for any attempt by Congress to enact any law that is focused on religion?

Do you think that the Courts incidentally establish religion when ardently and jealously guarding the free exercise clause? (I realize that the 1st Amendment is a limitation on actions of Congress (the legislative) and not the judicial, but my question about the Court in this regard is more a theoretical.)