Antonin Scalia

The Law: Sex, Drugs, and Religion


If you tried to argue that you should be exempt from the legal ban on marijuana because you really, really like to get high, you'd be laughed out of court. But if you said you should be allowed to smoke pot because your religion requires it, you'd be guaranteed a more respectful hearing. You might even win.

That was the case, at least, until April 17, when the U.S. Supreme Court ruled that the First Amendment's Free Exercise Clause does not exempt the religious use of peyote from state drug laws. "To make an individual's obligation to obey such a law contingent upon the law's coincidence with his religious beliefs, except where the State's interest is 'compelling'…contradicts both constitutional tradition and common sense," Justice Antonin Scalia wrote for the majority in Employment Division v. Smith. "Any society adopting such a decision would be courting anarchy."

Scalia did not merely assert that the government may restrict certain religious practices, a point that has been long established. He further concluded that such restrictions violate the Free Exercise Clause only when they are specifically aimed at religion and not when they are incidental to a general prohibition.

The Court's ruling was bad news for Will and Mary Ellen Tracy, who were trying to use the Free Exercise Clause to challenge California's prostitution laws. The Tracys were arrested in April 1989, after Los Angeles detective Alan Vanderpool tried to join their Church of the Most High Goddess.

Vanderpool called Mary Ellen Tracy, high priestess of the church, to express interest in becoming a member. Tracy met with the potential convert later that month to instruct him in the doctrines of the church, which practices a form of hedonism purportedly based on an ancient Egyptian religion.

After his lesson, Vanderpool claimed to accept the teachings and proceeded to confess his sins. But when Tracy informed him that the next ritual, "dedication," required him to perform cunnilingus on her, he balked. In fact, he and his fellow officers arrested her for prostitution. (Vanderpool and Tracy had discussed a donation to the church.) They also hauled in her husband, Will, who was accused of running a "house of ill repute."

Found guilty last fall and threatened with further charges, the Tracys sought an injunction in federal district court to prevent Los Angeles authorities from investigating or prosecuting them. On May 3, U.S. District Judge William M. Byrne, Jr., denied the injunction, finding that the Church of the Most High Goddess, where Mary Ellen Tracy has engaged in sexual intercourse with thousands of men, is merely a disguise for a brothel. Citing the Supreme Court's ruling in Smith, Byrne added that even if he found the Tracys to be sincere in their beliefs, their religion could not excuse their activities. The Tracys promise to appeal.

Like Smith, their case raises an issue that the nation's courts have addressed repeatedly since the late 19th century: Can religious belief render otherwise illegal behavior permissible? The traditional approach, which Scalia rejected, has been to strictly scrutinize a law that burdens religion to ascertain whether it serves a "compelling government interest" that could not be satisfied through less restrictive means. Usually, the government prevails. But in some cases the Free Exercise Clause has been understood to require an exemption.

Although it ostensibly expands freedom, such a result is troubling: If something is properly forbidden by the state, why should the religious beliefs of those who do it absolve them? Certainly no one would suggest that the First Amendment would require the government to allow slavery or human sacrifice if these practices were dictated by a religion.

Indeed, when a case can be made for a religious exemption to a given law, the law itself should be deemed suspect. If it is possible to allow prostitution or drug taking for religious reasons, why not for other reasons as well? Such exceptions are based on the notion that some freedoms, those specifically enumerated in the Constitution, are more important than others.

This view, which elevates religious freedom above other aspects of liberty, ignores a key idea embodied in the Constitution and expressed in the Ninth Amendment: "The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people." This amendment was intended precisely to avoid the impression that only the enumerated rights deserve protection—the mistaken premise underlying the rationale for religious exemptions.

Mormon plural marriage was the focus of the 1878 Supreme Court case that confirmed the federal government's authority to forbid religious practices deemed a threat to the public good. In Reynolds v. United States, the Court upheld the bigamy conviction of a Utah Mormon, declaring: "Laws are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices…the question is raised, whether religious belief can be accepted as a justification of an overt act made criminal by the law of the land.…To permit this would be to 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."

This point, echoed by Scalia in the peyote case, is hard to argue with. After all, no one should be able to get away with murder or mayhem by citing religious doctrine. But it does not follow from this principle that the law against plural marriage was a legitimate exercise of government power. The Court's argument for this conclusion relies almost entirely on the historical treatment of polygamy, suggesting that since it had often been forbidden, it should continue to be forbidden. Having established that the government may prohibit certain religious practices, and having asserted that polygamy is one of them, the Supreme Court went even further in the 1889 case Davis v. Beason, finding that the state's interest in preventing plural marriages justified restrictions on freedom of speech and association.

The early Mormon polygamy decisions continue to influence cases involving proposed religious exemptions, and Scalia cites Reynolds repeatedly in the Smith decision. But the specific legislative and judicial precedents in the peyote case were more favorable. The case involved two members of the Native American Church who were dismissed from their jobs as drug counselors when their peyote use was discovered and who were subsequently denied state unemployment benefits because of their "misconduct." (The state never prosecuted them.)

Unlike the Church of the Most High Goddess, the Native American Church already enjoys some protection for its rituals. The federal Drug Enforcement Act and the drug laws of 23 states exempt the church's peyote use from prosecution. The rationale for this exception was expressed in a 1964 decision by the California Supreme Court, People v. Woody. The court found that the state's interest in preventing the use of hallucinogens could not justify suppressing a ritual essential to a long-established religion. The three-member minority in Smith, led by Justice Harry Blackmun, came to a similar conclusion, finding that an exemption would not seriously compromise Oregon's drug laws.

Although this argument is widely accepted, it has not been extended to similar drug cases, such as marijuana use by the Ethiopian Coptic Church. In addition to sympathy for Native Americans, peyotism has the advantage of a long history, a fact noted in the Woody opinion. That believers in old religions should enjoy greater protection than followers of new sects may seem unfair, but there is a certain logic to this rule. Once religious freedom is granted special protection, courts must probe the sincerity of religious belief. They must ask the question: Are these people for real, or are they just faking it so they can get away with their deviant hobby?

Unable to look into the minds of adherents, the courts seek other evidence that the alleged ritual is authentic. The longer a purported religious practice has been around, the stronger its claim to legitimacy. Hence the authors of the National Prohibition Act had no problem making exceptions for sacramental wine used by Jews or Catholics.

Scalia does not believe the Constitution requires such exemptions, which he would leave to the legislatures. He notes that such a policy allows courts to avoid the messy business of sorting through alleged religious practices and deciding which merit protection. "What principle of law or logic can be brought to bear to contradict a believer's assertion that a particular act is 'central' to his personal faith?" he asks in Smith. "Repeatedly and in many different contexts, we have warned that courts must not presume to determine the place of a particular belief or the plausibility of a religious claim."

Yet the Court has also repeatedly tried to do just that. In Wisconsin v. Yoder, for example, the Court found that a state law requiring formal education of children beyond the eighth grade violated the First Amendment rights of Amish residents. In addition to the importance of compulsory education, the 1972 decision considered the significance within the Amish religion of keeping children at home and the long history and evident sincerity of Amish beliefs.

Scalia does not question Yoder, because the case involved not only religious freedom but also, he says, the right of parents to direct their children's education.

Of course, the peyote case—in principle, at least—might also have been argued on broader grounds. Drug laws, after all, infringe not only on religious freedom but also on privacy, property rights, and other aspects of individual liberty. Indeed, focusing on religion distracts attention from the central issue of whether the prohibition is legitimate.

As Southwestern University law professor Norm Karlin points out, the Court inquires into the state's authority to impose a legal requirement only if it finds that free exercise (or some other approved right) has been impaired. If so, it looks for a "compelling state interest"—which, Michael McConnell and Richard Posner note in the winter issue of The University of Chicago Law Review, might mean "provision of public goods," "paternalism," or "enforcement of morality" as well as "prevention of negative externalities." They add that "the Court has tended to treat almost any government interest…as sufficient to outweigh free exercise claims."

Even when such claims prevail, the special treatment of religious freedom tends to devalue other liberties, just as those who insisted on the inclusion of the Ninth Amendment in the Bill of Rights feared it might. Moreover, exemptions intended to satisfy the Free Exercise Clause arguably violate the Establishment Clause by writing privileges for religious groups into the law. And as we have seen, they invite unseemly judicial examination of religious belief.

As with the other enumerated rights, the protection of religious liberty grew out of experience. The fact that the Constitution specifically refers to freedom of religion indicates that the Framers were familiar with religious persecution, considered it a salient danger, and were keen to prevent it. The First Amendment is also evidence that many individuals of the time found religious freedom important in their own lives. But as the Ninth Amendment makes clear, the Free Exercise Clause does not mean that other rights are less worthy of protection, or that religious people somehow deserve more freedom than do nonbelievers.

To permit some individuals to ignore laws because of their asserted beliefs, while compelling others to obey, is manifestly unjust. The strategy of seeking religious exemptions from legal prohibitions may win limited gains for particular groups; certainly it has a better track record than challenges based on the all-but-forgotten Ninth Amendment.

At the same time, however, the religious-exemption approach shifts the burden of proof from the government to small minorities claiming the privilege of disobeying laws observed by everyone else. It reinforces the dangerous presumption that the state is right until proven wrong.

Jacob Sullum is assistant editor of REASON.