Friday, March 2, 2012

Catholics, Contraceptives, and the (current Supreme Court's) Constitution

It used to be...

I hate to begin that way.

Whenever someone talks that way I get skeptical. Much of the time, mention of how "it used to be" or of the "good old days" is followed by nonsense. Too often it means the days before civil rights, before equal protection for women, before the law treated gays and lesbians with some semblance of human dignity, before the "activist" Supreme Court outlawed racial segregation and made the Bill of Rights applicable to the states. Yep, America was sure a better place before that time!

No, I'm not talking about any such nonsense. I am talking about how free exercise of religion used to be protected as a fundamental right. As one of those important constitutional rights along with free speech, free press, right to assemble, right to counsel, right against forced confessions, right to a fair trial, right to have a family, right to raise your children, etc. Yes, I'm talking about how free exercise of religion, guaranteed in no uncertain terms in the 1st Amendment, used to be protected.

Because it isn't any more. No it isn't. Not under current Supreme Court case law.

Whatever one thinks about the mandate for contraceptive and morning-after coverage, whatever one thinks about any law or government regulation that interferes with freedom of religion, it is modern Supreme Court case law that has stripped religious freedom of the protection provided for every other fundamental constitutional right. Yes, stripped of the protection given speech, press, assembly, counsel, parenting, etc.

This is hard to believe. Very. But this is no exaggeration. This blog is not talk radio.

Every constitutional rights scholar knows this. Some may even agree that religious freedom should be treated as a 2nd class right. Most would adamantly disagree. But agree or disagree, everyone who teaches, or studies, or practices in the field of constitutional rights knows this to be true. 1st Amendment free exercise of religion is treated as an annoyance, not a fundamental right, under recent Supreme Court decisions.

And no. This is not the result of a liberal Supreme Court. No, this is not the result of an increasingly secular Court that disparages religion.

No, this is, instead, the result of conservative Justices who viewed a minority religion as a nuisance. Who viewed the religious liberty of a minority religion as an affront to the majority's preferred legal order. Who viewed the religious objections of minority religions as invitations to chaos. And who, consistent with that view, ruled that a law's infringement on, or disregard for, religious freedom is virtually irrelevant to the law's validity.

Yep, forbid a religious practice--irrelevant. Require violation of a religious belief--irrelevant. Perfectly fine under the current Court's view of the 1st Amendment.

The Justice Scalia-authored Oregon v. Smith (1990) is the culprit. (Or, it's the word of wisdom for those who agree with it.) But before looking at that decision and its progeny, let's first take a look it used to be.

It's basic constitutional law that the Constitution is the supreme law of the land. It is superior to legislation and to anything else that government does. Consequently, any legislation or government act that conflicts with the Constitution is invalid. In short, the Constitution trumps all else.

That applies to constitutional rights no less than to the rest of the Constitution. So, when government violates constitutional rights, its actions are contrary to the Constitution and, thus, invalid. That is all elementary.

What is tougher is the extent to which the Constitution's commands--including its guarantees of rights--can be absolute. Well, of course, they can't be. Free speech, free press, right to assemble, and free exercise of religion, to name a few, cannot be absolute. At least they can't in any minimally ordered, healthy, safe, and sane society. All such rights must of necessity be limited when, for example, they threaten national security, human life or limb, the health and safety of children, etc.

But the threats must be real. Otherwise, if constitutional rights could be defeated whenever the government simply claimed national security, life and limb, health and safety, etc., those rights would be at government's mercy. Government would have little difficulty justifying violations. The proper Constitutional order would be reversed. Laws and other government acts would effectively be superior to the Constitution whenever government had some plausible excuse for what it was doing.

To prevent such a dilution of the Constitution, to insure that the Constitution's commands actually had some force and effect--including the Constitution's guarantee of rights--the Supreme Court has over time made it difficult for government to behave contrary to those commands and guarantees. Every student of the Constitution and the Supreme Court knows how.

It's called the "strict scrutiny" or "compelling interest" test. Whenever government infringes on a fundamental constitutional right--e.g., rights explicit in the 1st Amendment--the law or other government act in question is subject to a high level of scrutiny by the courts. The law or act is invalid and impermissible unless the government passes a strict test.

Here's that test.

First, the government must show that  it has a compelling purpose for its law or action. That is, the law or action must be serving some very important government purpose or interest such as national security, health or safety, life or limb, etc. Just any reason or even a good reason won't do. The government must have a very very strong reason. A reason of the highest order--i.e., a compelling one--in order to override a constitutional right.

And that's not all. The government must then show that it has no alternative to infringing upon the constitutional right. If there is some other way for the government to accomplish the same compelling purpose, then the law or other government action is invalid. In other words, government must do what it's doing in a way that doesn't interfere, or interferes least, with constitutional rights.

In short, in the plainest language, what all this means is that government is not allowed to infringe on fundamental constitutional rights unless it really really has to for a very very important reason. Yep, that's the strict scrutiny test. It makes sure that constitutional rights are treated seriously by government. And it's the supreme law of the land.

The Supreme Court formulated this test after countless decisions involving constitutional rights, eventually refining and defining the common threads that tied those decisions together. In some of those decisions, the claim of constitutional right won. In others, government's infringement was upheld.

Certain rights such as free speech, free press, and free exercise of religion were early recognized as fundamental--i.e.,essential to a free society. Other rights were added to the fundamental list--e.g., the right to counsel in a criminal case, the right to a jury trial, parental rights to raise their children, and the right against racial discrimination. The American concepts of freedom, liberty, and justice could not exist without them. Hence, they were afforded a very high level of protection.

Accordingly, whenever any fundamental right was interfered with by government, the strict scrutiny test (regardless of how labelled over the years) would be triggered. Government would have to prove that it really really has to do what it's doing for a very very important reason. Otherwise, the government's law or action would be declared unconstitutional and be rendered null and void.

In some of the most heralded landmark decisions in Supreme Court history, this is precisely what happened when government intruded on religious liberty.

In West Virginia v. Barnette (1943), the Court held that a state could not require Jehovah Witnesses students to stand and pledge allegiance to the flag, because their religious beliefs prohibited them from doing so.
In Girouard v. U.S. (1946), the Court held that the federal government could not require Quakers to pledge to bear arms in the national defense as a condition of naturalization, because that was contrary to their pacifist religious beliefs.
In Sherbert v. Verner (1963), the Court held that a state could not require Seventh Day Adventists to agree to work on Saturdays as a condition of receiving unemployment benefits, because their religion prohibited them from working on their Saturday Sabbath.
In Wisconsin v. Yoder (1972), the Court held that a state could not require Amish children to attend high school, because that would violate Amish religious beliefs against "worldly influences."

In every one of these landmarks, the Supreme Court ruled that the government had to make exceptions for the religious objectors. Requiring compliance with the law, in violation of religious beliefs, was not justified by any genuinely compelling need to do so.

That was the law. That was the Supreme Court's jurisprudence. That still accurately represents the law and still accurately represents the Supreme Court's jurisprudence when it comes to fundamental constitutional rights--generally, that is. Just not for free exercise of religion. No, not any longer.

First came a case involving an Orthodox Jew, serving in the military, who was threatened with a court martial for wearing his yarmulke indoors. A deeply divided Supreme Court upheld the military dress code, refused even to consider an accommodation, and simply deferred to military discipline. Goldman v. Weinberger (1986).

Then, 4 years later, in Oregon v. Smith (1990), another deeply divided Supreme Court put the nail in the coffin of free exercise protection. The case involved a Native-American church that had used peyote in its sacramental ritual for a long time. It sought an exemption from Oregon's drug laws so it could continue its indisputedly sincere religious practice. The Court, in the Scalia-penned opinion mentioned previously, rejected the church's request and refused to require any accommodation.

But most importantly, speaking for the majority, Scalia denied that the Court had ever required an exemption for a religion. He further denied that the strict scrutiny, compelling interest test ever applied to religious liberty! According to the Scalia-authored decision, as long as a law is "otherwise valid," it makes no difference if it interferes with religious free exercise.

Yes, that's what he wrote--writing for the majority over vehement, incredulous dissenting Justices. And yes, that is the law of 1st Amendment free exercise of religion today. It's the one fundamental constitutional right that is not treated as fundamental!

Think about that for a bit. Some of us have been speaking and writing and complaining about it ever since. Not only because we believe the decision is dreadful, but because it's even worse than one dreadful decision. It was shortly followed by another Supreme Court decision reaffirming it. And it has been followed by some state supreme courts who have similarly diluted the protection of religious liberty under their own state constitutional law.

But this is enough for now. We'll return in the next post to review some of those religious liberty landmarks mentioned above, and take a closer look at that u-turn of a decision in Smith. We'll also take a brief look at Smith's progeny, both at the Court itself and in the states.

(For the first post in this discussion of the Catholics & contraceptive-coverage controversy, see Catholics, Contraceptives, and the Constitution, Feb. 26, 2012.)