Stanley Fish, as always, has something interesting to say about the law. In this post (“Monkey Business“) on his NYT’s blog, “Think Again,” Fish describes a case in federal court (S.D. N.Y.) about a claim that the importation of “bushmeat” for religious purposes that otherwise would violate the Convention on International Trade of Endangered Species.
Fish takes some time to describe the Employment Division v. Smith case and appears to side with Justice Scalia’s opinion:
Here the issue was the ingestion at a Native American religious ceremony of peyote, deemed a “controlled substance” by the laws of Oregon. Justice Antonin Scalia, writing for the majority, notes that the Native American celebrants “contend that their religious motivation for using peyote places them beyond the reach of a criminal law that is not specifically directed at their religious practice and that is concededly constitutional as applied to those who use the drug for other reasons.” In short, the demand is that the law be applied differently to persons with different beliefs — you can’t use peyote as a recreational drug, but I can use it because I consider it sacramental — and this Scalia refuses to do.
The intention of the Oregon law, he points out, was not to curtail anyone’s free exercise of religion, and the fact that the free exercise rights of some people happened to be impacted negatively is “merely the incidental effect of a generally applicable and otherwise valid principle.” If the affected believers are unhappy, Scalia concludes, let them turn to the “political process” and try to get laws passed that will address their concerns.
That is exactly what happened on two fronts. Congress passed a law making the use of peyote in religious ceremonies an exception to the controlled substances regulations. And the same Congress passed the Religious Freedom Restoration Act (1993), which transferred the burden of proof from the religious practitioner to the government.
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While RFRA was hailed as a victory for religious freedom by many, others saw in it the realization of the fear expressed by the Reynolds and Smith courts, the fear that any law could be lawfully disobeyed by someone who asserted that it interfered with the free exercise of his or her religion. In effect, they complained, the rule of law was being subordinated to the private convictions of an ever expanding set of citizens. For, as Scalia observes in Smith, who can tell another that a certain practice is not central to the free exercise of his religion? Prison inmates can claim that their religious requires them to eat porterhouse steak every day.
Actually, Fish doesn’t really make a serious stand. He merely suggests at the end of his piece that questions of religious freedom will never end.
Fish appears to side with what he refers to as “the rule of law”:
Do we begin by assuming the special status of religious expression and reason from there? Or do we begin with the rule of law and look with suspicion on any claim to be exempt for it, even if the claim is made in the name of apparently benign religious motives?
I’m not religious (there, my bias is out), but Fish is falling into the rhetorical (logical?) trap of creating two polar opposites and demanding that the reader pick one — “rule of law” or “special status.” Of course, we’ll want to pick “rule of law” because “special status” is, by definition, unfair. But decades ago (maybe not that long), Fish used to argue against the labeling of something as “special status” or”special rights” as the means to defeat it — in the context of affirmative action.
Anyway, if we follow the Scalia/Fish model of “rule of law,” then we pretty much guarantee that the United States will have a few major religions, and intolerance for the rest because they inconveniently ask the rest of us to set aside the “rule of law” for a moment. For evidence, see last Term’s Hein v. Freedom from Religion Foundation.
Turtle Talk 