Today in Supreme Court History: November 6, 1989

11/6/1989: Employment Division v. Smith argued.

Employment Division of Oregon

 

Comments

[Dan Schiavetta]

Weeth v. New England Mortgage Security Co., 106 U.S. 605 (decided November 6, 1882): the Supreme Court used to have jurisdiction when a "certificate of division" was presented to it, where there was a disagreement between the District Judge and the Circuit Justice (from the Supreme Court); here (in a dispute over loan repayment) a certificate was rejected because it called upon the Court to get into fact-finding

Mount Lemmon Fire District v. Guido, 139 S.Ct. 22 (decided November 6, 2018): 20-employee minimum required for liability under Age Discrimination Act of 1967 does not apply to state entities (here, a local fire department)

Miles v. Apex Marine Corp., 498 U.S. 19 (decided November 6, 1990): Jones Act allows wrongful death claim (extending the holding of Moragne v. States Marine Lines, 1970, from longshoremen to seamen) (I remember Moragne from first-semester Torts class; at the time I thought: "wrongful death"? is there such a thing as rightful death?)

[Armchair Lawyer]

Probably one of Scalia's worst decisions.

[Sarcastr0]

Have you read it?

[Armchair Lawyer]

Yes

[Sarcastr0]

What is your issue with the reasoning, specifically?

[Armchair Lawyer]

A "Generally applicable law" that impedes on a Constitutional right, still impedes upon that right, and needs to be justified

[Sarcastr0]

So…I don’t think you read the case. Because it discusses this, at length.

[Armchair Lawyer]

Simply because something discusses it, doesn't mean the reasoning is correct.

[JasonT20]

Is it at all surprising that Scalia wouldn't side with two Native American Church followers that wanted unemployment benefits after being fired for using drugs in their non-Christian religious rituals? If they had been nuns that wanted to keep their employees from getting birth control without any out-of-pocket cost, on the other hand...

[The Margrave of Azilia]

The backlash from *Smith* produced RFRA and RLUIPA with large Congressional majorities crossing the usual political lines.

Meaning progressives and reactionaries linked arms to promote religious freedom - even for unsympathetic characters like convicted killers. Plenty of litigation under RFRA and RLUIPA involves people in prison (and imprisoned for good reason) winning the freedom to practice their religion against claims that this would interfere with prison discipline. Muslims benefited from this, too.

Now some people think this trans-ideological cooperation should be rolled back, making the law more ideological by protecting only those deemed by one faction to be worthy.

[Armchair Lawyer]

Indeed, it did.

[JasonT20]

Now some people think this trans-ideological cooperation should be rolled back, making the law more ideological by protecting only those deemed by one faction to be worthy.

I have no desire to see religious freedom claims depend on what “faction” the claim is coming from or whether it is “worthy.” What I would like is for religious freedom claims to stick to a standard that doesn’t let every person “become a law unto himself,” exactly as Scalia wrote, quoting from Reynolds v United States. Especially when the conflict is arising when someone feels that their religious freedom is being infringed when they are required to follow a law intended to protect the rights of other people. Claims that it violated their religious beliefs in keeping races separate didn’t fly when some were arguing against desegregation.

I can agree that a photographer shouldn’t have to be at a wedding if doing so would make them feel complicit in something they see as a sin. (Even though I really think that it would be about bigotry rather than religious piety, I don’t think courts should dig into that unless there is already some evidence that the religious claims are pretextual for something not protected.)

But baking a cake is simply selling someone the same thing you would sell to other people. A baker doesn’t have to be at the wedding. To say that the cakes are customized and thus have artistic expression doesn’t change my thinking. Only if the couple wanted “Congratulations Adam and Steve on your big gay wedding!” put on the cake, would that make a difference in my mind.

The Little Sisters weren’t being asked to pay for the insurance coverage of birth control, but to fill out a form saying that they didn’t want to for religious reasons. They still objected because that would ‘trigger’ the employees ability to get birth control without any cost sharing, thus still making them complicit in their employees’ sin.

These kinds of things were just ridiculous, to me. And while a Muslim inmate wanting to keep a short beard rightly gets a ruling in his favor, I don’t have confidence that the conservative Christian justices would rule the same way as they did in cases like Hobby Lobby for every religious objector. And even if they did, it could be a calculation that conservative Christians are so much more numerous that their objections would be orders of magnitude more frequent than those of non-Christian, minority religious faiths.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Is it any wonder that you argue from what you want rather than what the laws said?

ETA to ask if you understand that the laws changed between the two decisions. IANAL and even I know that.

[JasonT20]

I never said what I wanted as to the outcomes of either of those cases. I was pointing out how the plaintiffs in that case were a long way from the usual 'persecuted Christians' religious freedom cases that end up in the news in more recent years.

And yes, I do know that RFRA was passed in response to that decision, making it the basis for cases like Hobby Lobby or Little Sisters, rather than the 1st Amendment.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Let me quote what you said and I was replying to:

Is it at all surprising that Scalia wouldn’t side with two Native American Church followers that wanted unemployment benefits after being fired for using drugs in their non-Christian religious rituals? If they had been nuns that wanted to keep their employees from getting birth control without any out-of-pocket cost, on the other hand…

Not a single word regarding the law. Everything is emotions, oh the poor Indians, they should have been Catholic.

[Dan Schiavetta]

Actually they should have been. Catholics were numerous enough to have a religious services exception written into the Eighteenth Amendment. The Free Exercise clause exists to protect religions that lack political power.

[David Nieporent]

The 18th amendment has no such exception written into it; are you perhaps thinking of the Volstead Act?

[Dan Schiavetta]

Yes you’re right. I looked it up: Volstead Act, Title II, section 3. Thanks.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

That's nice. So are Christmas ornaments. Neither has anything to do with the law.

[JasonT20]

Not a single word regarding the law. Everything is emotions, oh the poor Indians, they should have been Catholic.

That misinterprets what I was saying. I wasn't lamenting the plight of "poor Indians". I was pointing out that Scalia always seemed a lot more sympathetic toward Christian perspectives. His dissent in Edwards v. Aguillard, for instance. He arrived at the conclusion that Louisiana's requirement to teach "creation science" if the theory of evolution was taught in public schools was not a violation of the Establishment Clause. To get there, he had to pretend something that was obviously true was not: that Louisiana was pushing a fundamentalist Christian idea in public schools. (Of course, creationists changed tactics after this loss and invented "intelligent design" to try and give judges more of a fig leaf to hide behind.)

Why go through all of his pretzel logic to back something so obviously against the meaning of the Establishment Clause? Why such hostility toward the Lemon Test? The only thing that makes sense to me is sympathy to the perspective many conservative Christians have that they should get favorable treatment. In speeches outside the Court, he talked more than once about the need to resist "secularism". I think Thomas and Alito have as well, but I'd have to verify it.

[Armchair Lawyer]

"Is it at all surprising..."

Yes.