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FORDHAM URBAN LAW JOURNAL [Vol. XXIV able consequence of democratic government." ' 7 This cavalier conclusion, though, shirks the Court's historic responsibility to avoid such consequences. As Justice O'Connor retorted, "[T]he 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. 2 0 8 Completely contrary to Justice Scalia's view about the power of majorities to deprive minorities of their fundamental rights, the very purpose of the Bill of Rights, and of the Supreme Court in enforcing it, is to protect the rights of minority groups and individuals from what James Madison called "the tyranny of the majority. '"209 It is worth recalling the eloquent words of Justice Jackson in West Virginia Board of Education v. Barnette, as quoted above.210 In Smith, this powerful statement of central constitutional principle is relegated to Justice O'Connor's concurrence, 2 1 ' rather than being cited by Justice Scalia's majority opinion. Even more disturbing, Justice Scalia's opinion twice relies212 on Minersville School Districtv. Gobitis,21 3 the long-since discredited decision that rejected the religious freedom claims of Jehovah's Witness schoolchildren whose faith prevented them from honoring mandatory flag salute laws.
As Justice O'Connor's opinion recognized, minority religions are always the hardest hit by any cutback on religious freedom. 21 4 Accordingly, in the wake of the Smith decision, before the enactment of the Religious Freedom Restoration Act to repair some of its damage, federal judges were unable to enforce the Free Exercise
207. Smith, 494 U.S. at 890 (1990).
208. Id. at 902 (O'Connor, J., concurring).
209. THE FEDERALIST No. 10 (James Madison).
210. See supra note 52 and accompanying text.
211. Smith, 494 U.S. at 902 (O'Connor, J., concurring).
212. Id at 879.
213. 310 U.S. 586 (1940), overruled by West Virginia State Bd. of Educ. v. Barnette, 319 U.S. 624 (1943).
214. Smith, 494 U.S. at 902 (O'Connor, J., concurring in judgment).
RELIGION AND POLITICS1997] Clause to protect the religious liberty of members of minority faiths.215 In one of the most poignant opinions of this sort, Judge Raymond Pettine of the Federal District Court in Rhode Island had previously upheld the free exercise rights of a Hmong family whose religious beliefs were violated by a state law mandating autopsies for accident victims; according to their beliefs, when a body is autopsied, the soul cannot go to Heaven. Therefore, this family was tormented by the belief that the soul of their son, who had been killed in an automobile accident, and who had subsequently been autopsied, would be condemned to wander the Earth. Relying on the Supreme Court's longstanding Free Exercise Clause doctrine, Judge Pettine had granted their claim. However, in the interim between his ruling on the merits of their claim and the hearing on the issue of damages, the Supreme Court issued its Smith decision, repealing established Free Exercise Clause precedents and principles. Accordingly, Judge Pettine was forced to reverse his previous ruling. His rueful comment in doing so
215. See, e.g., Cornerstone Bible Church v. Hastings, 948 F.2d 464 (8th Cir. 1991) (holding that application of city's zoning laws to prevent a church from conducting services in an area zoned for commercial uses raised no free exercise concerns, even though the city permitted secular not-for-profit organizations in that area); Rector of St. Bartholomew's Church v. New York, 914 F.2d 348, 355 (2nd Cir. 1990), cert. denied, 499 U.S. 905 (1991) (rejecting free exercise claim where city's application of facially neutral landmark designation law "drastically restricted the Church's ability to raise revenue to carry out its various charitable and ministerial programs"); Montgomery v. County of Clinton, 743 F. Supp. 1253 (W.D. Mich. 1990), affd, 940 F.2d 661 (6th Cir. 1991) (compelling autopsy despite contrary, deeply felt conservative Jewish beliefs); United States v. Philadelphia Yearly Meeting of Religious Soc'y of Friends, 753 F. Supp. 1300 (E.D. Pa. 1990) (compelling the Society of Friends, commonly known as "the Quakers," to enforce an IRS levy against two employee-members who conscientiously refused to pay the military portion of their federal taxes despite the Friends' assertion that the IRS could not compel the Society to violate the religious beliefs of members by acting as an enforcement arm of the government); Yang v.
Sturner, 750 F. Supp. 558 (D.R.I. 1990) (denying damages to grieving parents who were adherents of the Hmong faith after an autopsy was performed on their son against the dictates of their religion); Swanner v. Anchorage Equal Rights Comm'n, 874 P.2d 274, 278-80 (Alaska), cert. denied, 115 S. Ct. 460 (1994) (holding that landlord's refusal to rent to an unmarried couple violated state fair housing law and could not be excused on the ground that landlord sincerely believed that renting would facilitate fornication, and would therefore be sinful); Smith v. Fair Employment & Housing Comm'n, 51 Cal. Rptr. 2d 700, 709, 719 (Cal. 1996), cert. denied, 117 S. Ct.
2531 (1997) (holding that religious landlord could not discriminate against unmarried couples regardless of the religious beliefs of the landlord); State v. Hershberger, 462 N.W. 2d 393 (Minn. 1990) (holding that the Free Exercise Clause provided no basis for exempting an Amish farmer from displaying a bright orange triangle on his buggy, to which the farmer objected on religious grounds, even though the evidence showed that another material would have served the State's purpose equally well).
472 FORDHAM URBAN LAW JOURNAL [Vol. XXIV underscores Justice Scalia's gutting of the Free Exercise Clause, as a potential protector of minority religious beliefs: "While I feel constrained to apply the majority's opinion to the instant case, I cannot do this without expressing my profound regret216 my own and with Justice Blackmun's forceful dissent.
agreement As members of a minority religion, Jews also suffered inroads on their religious liberty in the period after the Court rendered Smith and before Congress enacted, and the President signed, the Religious Freedom Restoration Act. In one case, parallel to the Hmong case just described, a Jewish accident victim was subject to an unnecessary autopsy in violation of his mother's religious beliefs.217 In other situations, Orthodox Jewish prisoners were218 forced to choose between eating pork or no meat at all.
It is doubly ironic that Justice Scalia has played such a significant role in decimating the Court's and Constitution's support for religious freedom, because that constitutional revisionism flies in the face of two concerns that Justice Scalia has stressed in other contexts.
First, eliminating the Free Exercise Clause as a meaningful source of support for religious liberty is inconsistent with Justice Scalia's stated concerns about the religious liberty of Christians in the U.S., which he considers to be embattled.219 Second, Justice Scalia's radical rewriting of Free Exercise Clause jurisprudence in Smith was undertaken without any consideration of the history and tradition which he has otherwise stressed 22 0 -including in his lecture at JTS221-should be the underpinning of all constitutional decisionmaking. As Justice O'Connor explained in her dissenting opinion in the Court's 1997 decision that invalidated the Religious Freedom Restoration Act and reaffirmed Smith-City of Boerne v.
Flores-the historical evidence supports the Court's pre-Smith apYang, 750 F. Supp. at 559.
217. See Thomas Zambito, 'A Violation, A Desecration'-Mother Sues Coroner Over Son's Autopsy, BERGEN RECORD, Oct. 3, 1995, at 3.
218. See Laura LaFay, Inmates Must Prove Beliefs for Meals; Requests for Jewish, Nation of Islam Meals Have Risen Greatly in Prisons,VIRGINIA PILOT, Mar. 31, 1996, at BI (noting that in Virginia, kosher and Nation of Islam meals are served at only one prison, the Buckingham correctional facility in Dillwyn).
219. See supra Part IIC.
220. See, e.g., Printz v. United States, 117 S. Ct. 2365 (1997); Lewis v. Casey, 116 S.
Ct. 2174, 2196 (1996); Antonin Scalia, Originalism: The Lesser Evil, 57 U. CIN. L.
REV. 849, 855 (1989).
221. Bridges: A Liberal/ConservativeDialogue with Larry Josephson (NPR radio broadcast, Aug. 2, 1996) (transcript on file with the Fordham Urban Law Journal).
1997] RELIGION AND POLITICS 473 proach to the Free Exercise Clause, and therefore affords further
support for overturning Smith:
I shall not restate what has been said in other opinions, which have demonstrated that Smith is gravely at odds with our earlier free exercise precedents.... Rather, I examine here the early American tradition of religious free exercise to gain insight into the original understanding of the Free Exercise Clause-an inquiry the Court in Smith did not undertake....
The historical evidence casts doubt on the Court's current interpretation of the Free Exercise Clause. The record instead reveals that its drafters and ratifiers more likely viewed the Free Exercise Clause as a guarantee that government may not unnecessarily hinder believers from freely practicing their religion, a position consistent with our pre-Smith jurisprudence.222 Likewise, Justice Souter's dissent in the same case stressed that his previously explained "serious doubts about the precedential value of the Smith rule"" had been "intensified... by the historical arguments going to the original understanding of the Free Exercise Clause presented in Justice O'Connor's opinion,... which raises very substantial issues about the soundness of the Smith rule."224 To be sure, in the Boerne case, Justice Scalia wrote a separate concurring opinion (in which Justice Stevens joined), "to respond briefly to the claim of Justice O'Connor's dissent that historical materials support a result contrary to the one reached in" Smith.
As Justice Scalia's own language indicates, though, his discussion in Boerne is only a "brief" one. Therefore, the fact remains-as stressed in Justice Souter's dissent in Boerne-that the Court still has never had briefing or oral argument on any aspect of the Smith rule, including its (non)fidelity to the original understanding of the Free Exercise Clause; accordingly, it also remains the case that the Court has never comprehensively addressed those issues.226
V. ConclusionI would like to close now by quoting from the Foreword to the Anti-Defamation League's book about the extreme Right, which I
222. Boerne, 117 S. Ct. at 2178 (O'Connor, J., dissenting).
223. Id. at 2185 (Souter, J., dissenting), (citing Church of Lukumi Babalu Aye v.
Hialeah, 508 U.S. 520, 564-77 (1993) (Souter, J., concurring in part and concurring in judgment)).
225. Id. at 2172 (Scalia, J., concurring)
226. Id. at 2185 (Souter, J., dissenting) FORDHAM URBAN LAW JOURNAL [Vol. XXIV mentioned earlier. This Foreword, written by ADL's National Director, Abraham H. Foxman, is an eloquent reminder that strictly enforcing both First Amendment religion clauses is as essential for
preserving religious liberty as it is for preserving a tolerant, pluralistic, democratic society. He wrote:
Religious righters seem unable to understand-and the pluralists among us need to continue to make the case-that in America tolerance and pluralism are traditional values, however imperfectly realized, and that they are precisely the values that bolster religion....
Thanks to the Constitution's First Amendment, the sanctity of personal faith and the determination to achieve a better worlda determination that often arises from faith-have been protected throughout American history. That protection is one of the glories of the nation's heritage-a great traditional value.
How ironic and unfortunate that it is now assaulted in the name of religion and traditional morality. The Anti-Defamation League, with this report, aims to help ensure that in the face of such an assault, all those who choose may honor, by the lights of their own faith.., the prophet Micah's declaration: "And what does the Lord require of you? To act justly and to love mercy and to walk humbly with your God."22 7 '