Supreme Court Justice Antonin Scalia Editor's Note: The following is a modified abstract of a paper presented at a seminar held by Christ the King Law Center (CKLC) on October 5, 2013 titled Is the Constitution Catholic?
[P]erhaps even more disturbing than the Constitution’s prohibition against the establishment of a Christian state is its failure to adequately protect the freedom of the Church. It is true that the First Amendment provides that “Congress shall make no law… prohibiting the free exercise [of religion].” However the Supreme Court has ruled that states may prohibit or regulate conduct in general, and this is true even if the prohibition or regulation happens to interfere with a person’s religious practices. The First Amendment cannot be used to challenge a law of general applicability unless it can be shown that the law was motivated by a desire to interfere with religion. [1] The First Amendment does not require exemptions from criminal laws or other governmental regulations for a person whose religious beliefs prevent him from conforming his behavior to the requirements of the law. In other words, a law that regulates the conduct of all persons can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him from complying with the law.
The Supreme Court has held that no religious exemption was required for the following religiously neutral regulations, even though certain groups objected because the regulation interfered with conduct inspired by sincerely held religious beliefs:
As chillingly stated by the “ultra-conservative” Supreme Court Justice Antonin
Scalia:
While we would agree that an individual’s personal religious beliefs are not in themselves enough to excuse them from obedience to a “valid law” prohibiting conduct that the state is “free to regulate” the question is what are these valid laws? Certainly the laws of God and of His Church are valid laws. And certainly polygamy is conduct that the state is free to regulate. However the Constitution, as it is currently written, prohibits a Catholic state and prohibits requiring government officials to profess their obedience to God and His Church. Therefore the Constitution permits a government that can, and often does, make laws that punish Catholics and “Christians” who are attempting to obey the divine and natural law. Here are some examples of such “laws”:
[1] See Employment Division v. Smith, 494 U.S. 872, 878-79 (1990).
[2] Employment Division v. Smith, 494 U.S. 872, 878-79 (1990).
[3] See e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994).
[4] See e.g., Wis. Stat. § 50.375 (2007).
[5] See, e.g., “New York clerk faces lawsuit for refusing to sign same-sex ‘marriage’ license,” http://www.freerepublic.com/focus/f-news/2786143/posts.
[6] “Sexual orientation discrimination” in employment is banned in California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. Religious exemptions typically do not apply to Christian organizations that are not actually engaged in a religious mission but rather provide services to the general public.
[7] See, e.g., Catholic Charities of Diocese of Albany v. Serio, 7 N.Y. 3d 510, 522 (2006), where New York’s highest court held, in keeping with the decision in Smith, that Catholic Charities of New York must provide employee health coverage for contraception under the “Women’s Health and Wellness Act” because “the burden on plaintiffs’ religious exercise is the incidental result of a ‘neutral law of general applicability’….”
[8] John Jalsevac, “Christian Photographer Hauled before Commission for Refusing Same-Sex Job,” January 30, 2008, www.lifesite.net/ldn/2008/jan/08013004.html.
[9] Jalsevac, “U.S. Christian Camp Loses Tax-Exempt Status over Same-Sex Civil-Union Ceremony,” September 17, 2007, www.lifesite.net/ldn/2007/sep/07091902.html.
[P]erhaps even more disturbing than the Constitution’s prohibition against the establishment of a Christian state is its failure to adequately protect the freedom of the Church. It is true that the First Amendment provides that “Congress shall make no law… prohibiting the free exercise [of religion].” However the Supreme Court has ruled that states may prohibit or regulate conduct in general, and this is true even if the prohibition or regulation happens to interfere with a person’s religious practices. The First Amendment cannot be used to challenge a law of general applicability unless it can be shown that the law was motivated by a desire to interfere with religion. [1] The First Amendment does not require exemptions from criminal laws or other governmental regulations for a person whose religious beliefs prevent him from conforming his behavior to the requirements of the law. In other words, a law that regulates the conduct of all persons can be applied to prohibit the conduct of a person despite the fact that his religious beliefs prevent him from complying with the law.
The Supreme Court has held that no religious exemption was required for the following religiously neutral regulations, even though certain groups objected because the regulation interfered with conduct inspired by sincerely held religious beliefs:
- Criminal laws against polygamy [Reynolds v. United States, 98 U.S. 145 (1878)-challenged as applied to a Mormon who claimed that his religion commanded polygamy.]
- Prohibition against use of peyote [Employment Division v. Smith, 494 U.S. 872 (1990)-challenged by person whose religious beliefs require use of peyote during religious ceremony];
- Denial of tax exempt status to schools that discriminate on the basis of race [Bob Jones University v. United States, 461 U.S. 574 (1983)-challenged by religious school whose tenets require certain separations of races];
- Requirement that employers comply with federal minimum wage laws [Tony and Susan Alamo Foundation v. Secretary of Labor, 471 U.S. 574 (1985)-challenged by employer that argued minimum wages interfere with members’ religious desires to work without compensation];
- Requirement that employers pay Social Security taxes [United States v. Lee, 455 U.S. 252 (1982)-challenged by person whose religious beliefs prohibited payment and receipt of Social Security type payments]; and
- Sales and use taxes [Jimmy Swaggart Ministries v. Board of Equalization of California, 493 U.S. 378 (1990)-challenged as applied to sales of goods and literature by religious group].
As chillingly stated by the “ultra-conservative” Supreme Court Justice Antonin
Scalia:
- ‘We [the Supreme Court] 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. As described succinctly by Justice Frankfurter…: “Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs. The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” We first had the occasion to assert that principle in Reynolds v. United States… where we rejected the claim that criminal laws against polygamy could not be constitutionally applied to those whose religion commanded the practice. “Laws” we said, “are made for the government of actions, and while they cannot interfere with mere religious beliefs and opinions, they may with practices… Can a man excuse his practices to the contrary because of his religious belief? To permit this would make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.”’ [2]
While we would agree that an individual’s personal religious beliefs are not in themselves enough to excuse them from obedience to a “valid law” prohibiting conduct that the state is “free to regulate” the question is what are these valid laws? Certainly the laws of God and of His Church are valid laws. And certainly polygamy is conduct that the state is free to regulate. However the Constitution, as it is currently written, prohibits a Catholic state and prohibits requiring government officials to profess their obedience to God and His Church. Therefore the Constitution permits a government that can, and often does, make laws that punish Catholics and “Christians” who are attempting to obey the divine and natural law. Here are some examples of such “laws”:
- Pro-life demonstrations that allegedly “interfere” with the business of abortion mills, or which trespass on judicially or statutorily created “bubble zones” where the pro-life speech of Catholics and other “Christians” has been prohibited.” [3]
- The refusal of Catholic hospitals to dispense “emergency” contraception. [4]
- The refusal of adoption agencies to permit “gay adoption” or the refusal of local officials to certify “gay marriages”. [5]
- The refusal of Christian organizations to hire homosexuals. [6]
- To provide medical coverage for abortions and contraception. [7]
- The refusal of a wedding photographer to photograph a “gay wedding.” [8]
- The refusal of a campground facility to host a “gay marriage” ceremony at a pavilion on its property. [9]
[1] See Employment Division v. Smith, 494 U.S. 872, 878-79 (1990).
[2] Employment Division v. Smith, 494 U.S. 872, 878-79 (1990).
[3] See e.g., Madsen v. Women’s Health Ctr., Inc., 512 U.S. 753 (1994).
[4] See e.g., Wis. Stat. § 50.375 (2007).
[5] See, e.g., “New York clerk faces lawsuit for refusing to sign same-sex ‘marriage’ license,” http://www.freerepublic.com/focus/f-news/2786143/posts.
[6] “Sexual orientation discrimination” in employment is banned in California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Iowa, Maine, Maryland, Massachusetts, Minnesota, Nevada, New Hampshire, New Jersey, New Mexico, New York, Oregon, Rhode Island, Vermont, Washington, and Wisconsin. Religious exemptions typically do not apply to Christian organizations that are not actually engaged in a religious mission but rather provide services to the general public.
[7] See, e.g., Catholic Charities of Diocese of Albany v. Serio, 7 N.Y. 3d 510, 522 (2006), where New York’s highest court held, in keeping with the decision in Smith, that Catholic Charities of New York must provide employee health coverage for contraception under the “Women’s Health and Wellness Act” because “the burden on plaintiffs’ religious exercise is the incidental result of a ‘neutral law of general applicability’….”
[8] John Jalsevac, “Christian Photographer Hauled before Commission for Refusing Same-Sex Job,” January 30, 2008, www.lifesite.net/ldn/2008/jan/08013004.html.
[9] Jalsevac, “U.S. Christian Camp Loses Tax-Exempt Status over Same-Sex Civil-Union Ceremony,” September 17, 2007, www.lifesite.net/ldn/2007/sep/07091902.html.
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