“Justice Scalia’s Worst Opinion”

Posted at Public Discourse last week – and then blogged at Bench Memos – is a short article I wrote for the twenty-fifth anniversary of the Supreme Court’s decision in Employment Division v. Smith, the famous “peyote case” rejecting a religious freedom claim to exemption from the application of Oregon’s drug-prohibition laws, where used to prohibit the use of peyote at a Native American religious ritual.

Smith adopted an extremely narrow reading of the scope of the First Amendment’s protection for the “free exercise” of religion. (As my title implies, I am quite critical of the case.)

Our book, The Constitution: An Introduction, discusses – in a much more detached, descriptive manner – the thorny questions of the scope of religious freedom under the Constitution, and the history of the nation’s wrestling with these issues. We do so at several points in the narrative.

Chapter Five, which discusses the entire Bill of Rights, starts off with an introductory discussion of the First Amendment’s provisions concerning religious liberty (pp. 98-102), setting forth the issues of interpretation and the arguments offered on both sides.

Chapter Eight, covering the era of constitutional interpretation from 1876-1936, discusses Reynolds v. United States (1879), and other cases concerning the conflict between the Church of Jesus Christ, Latter-Day Saints (the “Mormons”) and federal laws banning the practice of polygamy, disqualifying from being a voter anyone who failed to swear he was not a member of a church or other group that advocated or encouraged polygamy, and repealing the corporate charter of the Mormon church and seizing its property. (pp. 211-212).

Finally, Chapter Ten, concerning the constitutional controversies of the modern era, discusses the Supreme Court’s more recent decisions concerning religious freedom – including the controversial Smith decision (pp. 295-301) – along with a great many other cases and issues.


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