WHO'S ON FIRST?

Hentoff, Nat

WHO'S ON FIRST? Nat Hentoff A Blow to Freedom of Religion The most widely reported—and most controversial—cases during the Supreme Court's last term were those concerning either parental consent...

...Richard Reuben, a reporter for the Los Angeles Daily Journal—-the nation's best legal paper—called me the day after the decision to urge that I write about it because it would otherwise be lost, in view of The New York Times's routine way of handling the story...
...Nat Hentoff A Blow to Freedom of Religion The most widely reported—and most controversial—cases during the Supreme Court's last term were those concerning either parental consent to teenagers' abortions or "the right to die...
...So they suggested that instead of the orange triangle, they use silver reflector strips on their buggies...
...Well, almost always...
...While the Court refused to allow her parents to withdraw her feeding tube, it ruled that other states can have lower standards than Missouri's as to when to end the life of an incompetent...
...But now, the United States Supreme Court has remanded the case back to the Minnesota courts for a decision that will conform with Employment Division v. Smith...
...The failure of much of the press—and that certainly includes editors as well as reporters—to understand the historic significance of the decision is a kind of tribute to Linda Greenhouse...
...Over time, the Bill of Rights—which for many years provided protection only against the Federal Government—has been made applicable to the individual states through the Fourteenth Amendment...
...Its impact has already been felt—by the Amish in Minnesota...
...State law, applicable to everyone, requires a vivid (some would say garish) orange triangle to be placed on all slow-moving vehicles, including the black buggies of the Amish...
...As they knew, a rehearing is seldom granted by the Court, and it wasn't in this case...
...In diminishing the First Amendment, Justice Scalia said airily that making exceptions for religious beliefs is a "luxury" that this nation, with so many religions, cannot afford...
...In England or Israel, parliaments can pass laws nullifying High Court decisions they don't like...
...And those refused relief by the courts, he added, can always have recourse to the political process...
...So some attention began to be paid to Employment Division v. Smith...
...Congress said the New York law violated the Fourteenth Amendment...
...But that's "an unavoidable consequence of democratic government," he wrote...
...So it would appear that until some far-off day when a majority of the Supreme Court decides to repair this grievous wound to the First Amendment, nothing more can be done...
...The history of our free-exercise doctrine simply demonstrates the harsh impact majoritarian rule has had on unpopular or emerging religious groups such as the Jehovah's Witnesses and the Amish...
...For further evidence, the Supreme Court ruled in 1959 that English-language literacy requirements for voting did not violate the Fourteenth Amendment...
...The most penetrating cry of near disbelief at what the Court had done came from Henry Siegman, executive director of the American Jewish Congress...
...Then a remarkably ecumenical group of religious leaders and law professors held a press conference in Washington to lay out the issues and to declare that the Supreme Court would be asked for a rehearing...
...In the wake of the Court's 1989-1990 term, these are the cases that still ignite controversy...
...For example, the Supreme Court has considered a line of unemployment-compensation cases in which a person has been fired because his or her religion forbids working on a Saturday or a Sunday...
...He predicted that the decision will have "a devastating impact on the rights of religious minorities because now, no matter how profoundly a law affects religion—and no matter how trivial the government's interest is in having its law applied uniformly—the Constitution offers no protection...
...There is a way, according to several Constitutional scholars, to "reverse" the Supreme Court in this kind of case...
...From now on, when a state passes a law that punishes religious expression, all it has to show is that the law applies to everyone in the state, is a valid law, and is not aimed, by name, at any particular religion...
...The short, clear bill restores the requirement that a state cannot abridge the free exercise of religion unless it can prove that it has a compelling interest to justify that action...
...In the lower courts, and in briefs as well as oral arguments at the Supreme Court, both parties debated according to the standard First Amendment test in cases of conflict between state statutes and religious convictions...
...I've since found out he called others...
...The pro-choice forces lost the parental-consent cases, and those favoring the right to die were the actual winners of the case involving Nancy Cruzan of Missouri, who has been in a persistent vegetative state since 1983...
...Although the public has been largely unaware of this radical revision of the First Amendment, there has been a considerable furor among diverse religious groups and civil libertarians...
...Representative Stephen Solarz, New York Democrat, has introduced the Religious Freedom Restoration Act...
...Even so, Scalia conceded that "those religious practices that are not widely engaged in" will be "at a relative disadvantage" in the political process...
...And Harry Blackmun was equally outraged by the majority decision: "[The Court's decision today] effectuates a wholesale overturning of settled law concerning the Religion Clauses of our Constitution...
...Yet, Congress went on to invalidate just such a statute in New York State...
...Among those endorsing this remedy for what the Los Angeles Times called "pure legal adventurism" are: Barney Frank, Newt Gingrich, William Dannemeyer, Don Edwards, Jim Sensenbrenner (traditionally at odds with Edwards on constitutional matters), and Major Owens...
...Therefore, Congress has the authority to prevent a state from violating the free-exercise rights of the people in it...
...A state law restricting free exercise of religion has had to meet stiff proof that the state had a "compelling" interest in enacting that law...
...Scalia was sharply and accurately reprimanded by Justice Sandra Day O'Connor: "The First Amendment was enacted precisely to protect the rights of those whose religious practices are not shared by the majority and may be viewed with hostility...
...The New York Times'^ highly competent and lucid Supreme Court reporter somehow missed the importance of this decision, and many reporters and editors around the country depend on her to determine their own priorities in coverage of the Court...
...Section 5 of that amendment gives Congress power to enforce, "by appropriate legislation," the contents of the Fourteenth Amendment...
...The key is the Fourteenth Amendment...
...Meanwhile, however, the Scalia decision in Employment Division v. Smith remains in force...
...They can go to the legislatures and try to get exemptions from them...
...The list of organizations backing the bill would make quite a Fourth of July tableau of pluralistic America: Agudath Israel of America (Orthodox), American Jewish Congress and American Jewish Committee (secular), the American Civil Liberties Union, Americans United for Separation of Church and State, the Baptist Joint Committee on Public Affairs, the National Association of Evangelicals, and the Native American Church of North America...
...They were dismayed by the lack of serious press attention to this assault on the free exercise of religion...
...And a case decided before Smith had to do with a municipality's zoning laws that excluded a Moslem mosque from a city...
...Though the state law makes no specific religious exemptions for such believers, Nat Hentojf is the author of "The First Freedom" and many other books...
...In this case, however, what Justice An-tonin Scalia did—abetted by William Rehnquist, Anthony Kennedy, Byron White, and John Paul Stevens—was to destroy the "compelling interest" standard...
...Well, not quite...
...the Court has, most of the time, found in favor of the religious conscientious objector...
...Minnesota's Supreme Court thought the silver reflector strips were a sensible way to accommodate Amish religious beliefs without weakening the safety concerns of the state...
...It's doubtful the bill can be enacted in the current Congress, but the 1991 Congress will be voting on it...
...I do not believe that the Founders thought their dearly bought freedom from religious persecution a 'luxury,' but an essential element of liberty—and they could not have thought religious intolerance 'unavoidable,' for they drafted Religion Clauses precisely to avoid that intolerance...
...A corollary Senate bill is forthcoming...
...They had been working in drug rehabilitation and were fired because they used peyote during the religious ceremonies of their Native American Church...
...His column on First Amendment rights appears quarterly in the Progressive...
...But here, the Supreme Court is the last word on the Constitution...
...They were disqualified from receiving unemployment compensation for having possessed a drug listed in Oregon's "controlled substance" law...
...If the state could not meet that demanding test, the law would be declared unconstitutional...
...And in 1966, the Supreme Court agreed with Congress (Katzenbach v. Morgan), thereby reversing itself...
...The case came from Oregon, Employment Division v. Smith, and the issue was the state's denial of unemployment compensation to two Native Americans...
...Missouri requires "clear and convincing" evidence of the patient's prior wishes...
...An individual's religious beliefs," he said in his decision, do not "excuse from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate...
...Rarely has a bill had, as co-sponsors, members of the House who are ordinarily in chronic combat with each other...
...But some members of Congress, having been awakened to the terminal state of the free-exercise clause, began to prepare legislation...
...Scalia is unimpressed by such arguments...
...There is a question as to how Congress can overrule a Supreme Court decision based on an interpretation of the First Amendment...
...After all, Justice William Brennan, an expert on the Fourteenth Amendment, wrote in Abington v. Schempp (1963) that "the Fourteenth Amendment's protection of the free exercise of religion can hardly be questioned...
...As anyone who has been through any Amish territory knows, they abhor loud colors...
...If that case were decided now, the mosque would be banished from Stark-ville...
...The laws were applicable to everybody, but in court, the city could not show a compelling interest in excluding the mosque, and the Fifth Circuit Court of Appeals ordered the city to grant the mosque a variance (Islamic Center v. City of Stark-ville) under the free-exercise clause of the First Amendment...
...But the most revolutionary Supreme Court decision in many years remains virtually unknown to the general public, though it eviscerated a fundamental liberty contained in the First Amendment: There shall be no law prohibiting the free exercise of religion...

Vol. 54 • December 1990 • No. 12


 
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