Justice Scalia's 1990 Court Opinion Says Hobby Lobby Needs to Provide Contraception for Employees

President Reagan and Justice Scalia (a few years prior to '90 Supreme Court decision)As far as I know there's only been one, but it's important this week.

The year is 1990, the case is Employment Division v. Smith, 494 U.S. 872 (1990), a case in which two people fired from their jobs with the state of Oregon for using peyote in religious ceremonies appealed their disqualification from unemployment benefits because they were discharged for misconduct.

Their argument was that because their conduct was motivated by their sincere religious beliefs it was protected by the Free Exercise Clause of the First Amendment, and that it was unconstitutional to penalize them for their actions.

The Supreme Court rejected their claim concluding that religious motivation is not enough to give them a blanket exemption from neutral and generally applicable state laws.

Justice Scalia wrote the court's opinion, and here's the money quote:   

We have never held that an individual's religious beliefs [p879] 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 in Minersville School Dist. Bd. of Educ. v. Gobitis, 310 U.S. 586, 594-595 (1940):

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.

Most of the liberals on the court dissented, but I think they were wrong and Scalia was right.

What remains to be seen now, of course, is whether Scalia is going to have the intellectual integrity to hold to the position he took in 1990. This year the case is Hobby Lobby and it's challenging the contraception coverage mandate of the Affordable Care Act.

If Scalia were as intellectually honest as he likes to pretend he would follow his reasoning in Employment Division and uphold the contraceptive mandate.

One suspects, however, that we will see a results-oriented vote in favor of his base. 


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