SYMPATHY FOR THE SCALIA. The New York Times is running a superb multi-part series about the increasing number of legal privileges and breaks being given to religious institutions, which has generated some attention and commentary. Today's article about the tax breaks given to religious institutions -- even when they involve clearly secular functions like retirement communities -- is also a must-read. What's striking in reading the series so far is the extent to which these special privileges have nothing to do with anything that could be plausibly called "religious freedom"--it's not clear how providing basic legal protections to administrators at religious colleges, for example, threatens the core expression of religious belief. (And the story about the aspiring nun who was fired because she contracted a serious illness, in addition to illustrating the abuses of religious freedom exemptions, should also remind us that the American system of tying healthcare to employment is awful.)
Just in case I haven't sufficiently established my contrarian cred by dissing Aaron Sorkin, these stories compel me to stick up for Antonin Scalia's opinion in Oregon v. Smith. The case -- which argued that incidental burdens placed on religious beliefs by valid general laws should be presumed constitutional rather than subject to "strict scrutiny" under the free exercise clause of the First Amendment -- generated an enormous amount of opposition from a strange-bedfellows coalition of civil libertarians and religious conservatives. But the Times' reporting makes a good case for the wisdom of Scalia's reasoning.
First, even under Smith the courts are (understandably) very reluctant to carefully scrutinize claims that state policies burden legal rights of religious freedom, no matter how tenuous the connection or how secular the activities involved. And second, far from always working to protect individuals against the state, these kinds of exemptions often have the effect of gutting the civil rights protections of individuals in order to protect powerful organizations. And the claims made by Seventh-Day Adventists that they should be exempt from labor laws because collective bargaining "defies Christ's admonitions that behavior must be directed by individual conscience" presents a good case for Scalia's argument that the First Amendment cannot create a system "in which each conscience is a law unto itself." (Why should a libertarianism ostensibly grounded in religion require an exemption from labor law but, say, being persuaded by Randy Barnett does not? And if the latter individual claims the former, how could you tell?) Society would benefit from fewer of these special exemptions; giving the courts the power to create more under standards that are extremely difficult to apply coherently would just make the problem worse.