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ABOUT THIS EPISODE

In the late 1980s, Alfred Smith and Galen Black were fired from their jobs as drug counselors for using peyote as part of Native American religious services. They applied for unemployment benefits but were denied by the state of Oregon. Smith and Black appealed, arguing that the denial of benefits violated their First Amendment right to the free exercise of religion.

The Supreme Court heard their case in 1989, and in early 1990, ruled against the two men. Writing for the majority, conservative Catholic Justice Antonin Scalia said that carving an exception from uniformly enforced laws (such as drug bans) for religious objectors would make people laws unto themselves and would court societal "anarchy." The First Amendment required no such thing, he wrote.

Not long after the Smith decision, Congress took matters into its own hands, and passed the Religious Freedom Restoration Act in 1993. Since then, the landscape of religious freedom in the United States has been profoundly changed.

Question: Can a state deny unemployment benefits to a worker fired for using illegal drugs for religious purposes?

Answer: Yes.

Majority:

  • Antonin Scalia (majority opinion)
  • William Rehnquist 
  • Byron White
  • John Paul Stevens
  • Anthony Kennedy
  • Sandra Day O'Connor (w/ concurrence only in the judgment)

Dissent:

  • Harry Blackmun (w/ opinion)
  • William Brennan
  • Thurgood Marshall
English
United States
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TRANSCRIPT

00:00:00Welcome to heightened scrutiny a podcast about the Supreme Court and civil rights on Joe dunman.
00:00:24Bill of Rights begins with the First Amendment and the first and then begins with this sentence Congress shall make no law respecting an establishment of religion or prohibiting the free exercise thereof, but what if alarm meant to address a larger societal problem incidentally infringes on religious practice does the government have to step aside? If so, what's the limit does the First Amendment require that any religious practice has to be allowed just because it's religious. This is Employment Division vs. MIT the religious peyote case in the late 1980s Alfred Smith & galyen black work is drug counselors for a private rehab organization in Oregon Smith. And black were also members of the Native American church as part of their churches normal religious practices both Smith and black periodically ingested the drug peyote peyote is a hallucinogen designated as a controlled substance under schedule. One of the federal Controlled Substances Act and is illegal both federally and an organ both Smith and black were fired from their jobs for violating their employers rule against drug used by drug count.
00:01:24After being fired, they both apply for unemployment benefits in the state of Oregon, but were denied in Oregon and most other state unemployment benefits can be denied. If a worker is fired for misconduct the definition of workplace misconduct include several forms of bad behavior such as breaking an employer's uniformly enforced rules for the use of illegal drugs. So Oregon deny, the benefits claims of Smith and black because they were fired from their jobs for misconduct, but Smith and black appeal the denial arguing that even though they use drugs and even though drug use is considered misconduct. They should not have been denied because their drug use was part of the religious practices as members of the Native American Church in 1988, but the court send the case back to Oregon to address an unresolved question of state law then in 1989 after the Oregon Supreme Court ruled that the denial of the unemployment benefits violated the free exercise right to Smith and black Under the First Amendment the US Supreme Court. Once again took up the case argued that it did not actually violate Smith and blacks First Amendment rights for supper.
00:02:24Reasons first the prohibition of drug uses General it does not Target any particular religion and does not single out any particular religious practice for punishment to peyote under both state and federal law is considered a dangerous drug that poses a serious threat to public health and safety as a hallucinogen taken seriously alter human perception and Consciousness and dust poses a variety of safety risks third forcing the state to give an accommodation for drug used to one religion will open the floodgates for others to demand accommodations and ultimately negate the laws against drugs entirely and forth getting in a combination of one church, but not others would actually violate the other half of the first sentence of the First Amendment the closet against an establishment of religion government should be neutral toward religion organ argued and that's grinding and drug use a combination of one Church would be to give it special treatment Smith and blacks counter argument with simpler denying unemployment benefits effectively punish them for their sincerely held religious beliefs, which the First Amendment prohibits and a prior cases.
00:03:24Sherbert vs. Verner from 1963 Supreme Court held that the government can only in French the free exercise of religion even has a compelling reason to do so and the government has no other choice the Sherbert test as it was known went like this first the court asked whether a law or government action actually bird in the free exercise of religious belief punishment or the denial of benefits such as unemployment benefits could be considered if a law or government actions did impose such a burden the court in sherbert said that the burden could only be constitutional if it was justified by compelling State interest and no alternate form of Regulation could avoid the infringement and serve the government interest. For example, even if a religious group sincerely believe that human sacrifice was absolutely necessary to achieve their religious salvation the government could still ban it because such conduct threatens human life and no alternative form of Regulation could prevent the harm public health and safety and protection of individual human life are compelling government interest. So relying heavily on the Sherbert test in their case Smith and
00:04:24Argue that the religious free exercise was severely burned by the denial there unemployment benefits and then there was no compelling purpose to punish the religious use of peyote because it was limited super vised and ultimately not dangerous to them or to the public oral argument was held on November 6th, 1989 chief justice William rehnquist presiding number 88 12 13 Employment Division of Oregon vs. Alfred Smith General David frommeyer. He took an interesting approach. He could have contested Smith's argument that Oregon even needed a compelling interest at all to deny unemployment benefits for the religious use a Peyote instead frohnmayer conceded that standard to a certain extent and said that Oregon did in fact have a compelling interest three of them actually.
00:05:12The first is the state's interest in regulating all peyote and hallucinogenic drug use to in order to further the health and safety interests of its citizens.
00:05:22The second is the state's interest in a regulatory scheme is a hole so that law enforcement does not face a patchwork of exemption of other drugs on a drug by drug religion by religion Believer by believer bases.
00:05:35Mustard and compelling interest is that the state constitutions requirement of neutrality in our jurisdiction requires it to avoid giving a preference of one church over another in response to Fred Meyers. First point about peyote Being A Dangerous Drug Justice Kennedy try to determine if there's any connection between the use of peyote in religious ceremonies and a larger secular trade of illegal drugs government's interest in controlling peyote and similar hallucinogens is real. It is compelling and it's evident by Universal and pervasive regulation. There are other religions using peyote and there are other religions using other drugs, which also clamor for first amendment constitutional exemption. Are there any documentation in the record Dorian reported the opinions the danger that peyote is diverted from religious use then they sold on the street in the normal drug distribution channels.
00:06:33Justice Kennedy, we know that it is found in normal drug distribution channels. Although not not in great amounts. Is it is it used for the derivative mescaline which in turn is used commercially. Can you get mescaline from some other source a mescaline as we understand it can be produced synthetically as well. As of course being found as a psychoactive ingredient in peyote itself. In fact that the only thing that distinguishes Pou from Escalon is the presence of alkaloids in a natural way in the peyote button what show does create additional effects on the particular user does this record show the presence of peyote buttons in the normal drug on a trade in any significant amount the best evidence for that is material at least tangential to the record in another Lower Court proceedings, which shows at the DEA has seized some 19 lb I believe is to figure over perhaps the. Of a decade.
00:07:33Specials at least one source is apparently other than Native Americans between the use of peyote by the Native American church and the larger illegal drug trade, but that was irrelevant according to Fred Meyer because the state of Oregon also had a compelling interest in maintaining a consistent drug policy that shouldn't have one exception for one religion and another for a different religion and yet another for 1/3 religion. Essentially. This was the slippery slope argument that if an exception for peyote was made for Smith other groups may have sought other exceptions and before long drug use would have become effectively legal despite the general prohibition and this desire not the car very succession since the states drug laws was also motivated by religious neutrality, which is required Under The Establishment Clause of the first amendment in other words, if an exception made for peyote, but not for other drugs are other religions. It could be considered a governmental preference for Smith's Native American religion. But what are the exemptions of the drug laws designed to protect religious free exercise?
00:08:33Really being an endorsement does the government endorse a religion by allowing people to practice it this philosophical question arises throughout the oral argument in this case Justice John Paul Stevens first pointed out that lots of other states did in fact make such exemptions without implicating The Establishment Clause and then Justice is Sandra Day O'Connor and Byron write follow-up judgment singled out a specific church. We believe it has in many respects potentially run afoul of The Establishment Clause unless it treats other religions clamoring for equal treatment on similar grounds in similar way. Are you arguing with the 23-year? It isn't 23 under your fingers that whatever the numbers States is the grand exam exemptions all violate The Establishment Clause to argue that giving an exemption in some form or another is an impermissible State act in the exercise of it's plenty of Authority or argument is simply that the free exercise clause does not come into every state in this Union as a parent.
00:09:33Are Oregon Supreme Court with command to craft an exemption singling out a specific Church some of those State exemptions as we pointed out that Justice Stevens do speak neutrally with respect to Bonafide religious practice. Don't those that don't you would say or invalid Under The Establishment Clause is whether if a court were faced with a claim by another religion that notwithstanding the specific name to claim of the of the United to another then perhaps that might implicate The Establishment Clause because it would have closed the door to others achieving this equally. So I believed our position is that we would have to wait for a case-by-case determination to see whether those jurisdictions would open their doors to other claims if properly Advance by other religions,
00:10:24But, I'm sorry if you just don't want to have to face up to those problems you want to be able to but not to have any exemption at all. That's correct. And it's not true for the state of Oregon because we have pending are appellate courts a case which in many ways is on all fours with this sandwich sincere religious comunican to believe that their use of marijuana is religiously inspired have asked for exemption Morgan's drug laws. And that's part of the problem is argument about the state of Oregon wanting to maintain a consistent flat rule drug policy was a relatively strong one at least of the ears of most of the justices, but there's one problem with drug policy in America both federally and at the state level when it comes to the dangers posed by certain drugs what we prohibit and what we allow is not very consistent at all a fact which prompted Justice Stevens the time and again, you're flat rule that position would permit a state to Outlaw. I totally the use of alcohol including wind and in the religious ceremony.
00:11:23That's a different question. Why is that the sacramental wine is different because at least at the present that is not a schedule 1 substance. The words are Reese's sale or use of alcohol, but they're there might be a religious accommodation argument of an entirely different order than is presented here is they made it just a better known religion. No has nothing to do with it is religion even during prohibition. There was a statutory exemption for them said was what I'm asking is supposing a state did not give that statutory exemption for accommodation is stronger stronger in at least two respects first is that the that examines re-examine compelling State interest of the ingestion of sacramental wine in small quantities. It might question whether the state's overall interest in regulation of a very dangerous substance.
00:12:23Could be a different case from Meijer attempt to distinguish small doses of alcohol and Christian ceremonies from small doses of peyote in Native American ceremonies didn't seem to convince Justice Stevens Safra Meyer fell back to the designation of peyote as a schedule 1 drug and the designation of alcohol as a less regulated schedule for drug as a reason why a state is allowed to ban peyote, but might not be allowed to prohibit the use of alcohol related ceremonies in a circular to an extent essentially from my argue that the Constitutional protection of religious free exercise depends on how a legislature classifies and regulates the substances to be used in religious ceremony, even if a substance that allows is more dangerous than one that does not allow all that matters is the classification and the classification is left entirely to the rational discretion the legislature. It doesn't have to be perfect or even totally accurate are the classifications of certain drugs is illegal and others is legal aren't just based on concern for Public Safety as Justice Stevens alluded part of the reason alcohol is less strictly regulated is because it's popular among the majority of America.
00:13:23And use as part of a popular religious ritual such as the mainstream Christian ritual communion peyote by contrast is used by a very small minority in religious ceremonies that are far less popular than changing subjects a bit Justice Anthony Kennedy asked for a minor to address one of Smith's arguments that punishing him and other Native Americans for the religious use of peyote will effectively destroy the religion justices Scalia know Connor soon join in you you do concede I take it that the enforcement of the Oregon criminal laws would in effect destroy the Native American church and its ritual in your state. Justice Kennedy for a very practical reason the Oregon from the prohibition construed as constitutional. There's no suggestion in our state that that religion has been destroyed by inappropriate police intrusion into the TPC Ramon most inappropriate.
00:14:23Have the right to intrude priorities and police enforcement that are understandable in terms of what is its take this. Mr. Khan enforce the law if we sustain it carefully and thoughtfully footnote. Three of the band is Justice O'Connor has called worth of the Court's attention. There may be in the specific context of the specific use by a person accused of a specific crime special State constitutional restrictions on the state which have not yet been explored. We do not know the Contours of those exemption Contour is just to forgive or exempt the use of peyote by members of the Native American Church you was in here arguing that
00:15:23violates The Establishment Clause if the defense word that the specific church and that church only was in total exemption that would very probably be the case Justice O'Connor enforce the law to the extent of sad that some a drug counselor who violates his employer's rules isn't protected doesn't get unemployment compensation others that of course we would
00:15:58Fred Meyer ended his argument there and turn the light turn over to Craig Dorsey who argued for Smith and black Dorsey started by returning the Justice Stevens line of questioning about the difference between alcohol and peyote peyote. Dorsey said is not as dangerous as people think and certainly not as dangerous as alcohol does organs interest in Banning. It was not as compelling as they claimed. The problem here according to Dorsey was really an ethnocentric won. The designation of peyote is a schedule 1 drug was as much a cultural determination as it was a medical or safety one. But Justice Scalia pushes back. I think if you looked at this situation and Indian people were in charge of the United States right now or in charge of government and you look at the devastating impact that alcohol has had on Indian people in Indian tribes through the history of the United States was not listed at all.
00:16:55And we're getting here to the heart of an ethnocentric of you. I think of what constitutes religion in the United States and I think that needs to be looked at very hard before determining what is a dangerous substance. And what is not for the use of of Paoli IN in significant quantities, that could could not produce any hallucinogenic or or other adverse physical effect. Might that be the exception that they were referring to and if that's the case then then you're pointing to the traditional use of wine at the religion Services would not make any difference by I I don't assume that the states would be compelled to allow excessive use of alcohol drunk and drop these parties and under on grounds of religion. I don't think that that's the
00:17:55Correct in that interest still exists here for instance for people who might overuse alcohol in a religious ceremony or for instance. If communion is administered to minors or some other situation in which state has a legitimate interest, but I don't see a correlation between what the Attorney General said that the whole purpose of the fact that the ingestion is harmful. There is no documented evidence that the use of peyote in these carefully circumscribes ceremonials has any harm to the individual?
00:18:43The society at large or to the state's law enforcement. I didn't get to be a schedule 1 controlled substance to leave at articulating. It's a bit circular as Dorsey tries to point out alcohol, which is highly addictive and directly contributes the thousands and thousands of deaths and injuries. Each year is less regulated than peyote which recording a prominent medical research is neither deadly nor particularly addictive peyote was banned but alcohol is allowed simply because Congress wanted it that way. It was an exercise of legislative discretion Congress decided for whatever reason the Peyote should be more restrictive than alcohol. Constitutionally speaking. This record is never recognize a standalone right to use drugs or any other particular psychoactive substances. The Constitution itself speaks of a right to religious worship in the First Amendment and of a right to Due Process under the fifth and Fourteenth Amendment, but neither of those have been interpreted to include a right to use any substance a person wants to use so the government can
00:19:43Early band we're not paying whatever drugs at once the band as long as there is at least some kind of rational connection to a legitimate purpose such as Public Health and Welfare. The government doesn't need to prove that alcohol is less dangerous to Justified stricter control of peyote. He just needs to have some generally legitimate concern and vice-versa. It doesn't need to prove alcohol is harmless in order to regulate it more Loosely than other drugs whether or not peyote is really all that. Dangerous doesn't really matter for the purposes of whether or not the government can bandit in general for the issue in this case is whether the denial of Smith's benefits from using peyote in French is right to practice his religion and under the test from Sherbert vs. Verner. Mr. Smith should not have been denied his unemployment benefits because religious peyote use is not particularly dangerous to Public Health. That's the government didn't have a compelling reason to infringe Smith religious rights by punishing him for using peyote. If all this new on seems confusing it is just bear in mind that the question in the case was not whether peyote should be legal or illegal in general only weather organs denial of benefits for using peyote in a religious ceremony.
00:20:43Turn Smith's right to free exercise. And if so, whether there was a good enough reason to justify that burden Dorsey repeatedly made the case of Oregon didn't have a good enough reason because peyote use in the Native American church is not actually harmful for justice Scalia challenges. In once again, very good case could be made on the basis of spreading beyond the Native American church. That's correct. And at that church has been responsible infused with war why can't the stage say
00:21:13we don't want Native American church members can use it either we think this is dangerous and is harmful to people if you don't want children to be brought into this church and talked to use this thing. It is wonderful to schedule 1 substance made that determination cause the first amendment I believe requires something more than a mere legislative statement that we believe it may be harmful.
00:21:37States can come up with all kinds of reasons to Outlaw kinds of conduct as recited in our supplemental brief for instance that the driving of Amish buggies without the reflector warning system is certainly a dangerous act. But if you allow the mirror legislative prescription without an actual inquiry into weather harm has in fact occurred, then you are not accept a scientific evidence that the use of a Peyote is is physically harmful. I would not change anything you would he would require the showing in the particular context of the religious service. The religious service. The evidence is divided the evidence is particularly divided in respect to this church. However, there is reliable scientific evidence that the
00:22:37Is peyote ceremony of the Native American Church contributes to Rehabilitation of people who have problems with drug and alcohol abuse? So the evidence is mixed there is no evidence that anyone.
00:22:54And we need to keep repeating this over 300 years or more has ever suffered harm Justice Byron white then turn to The Establishment Clause issue raised earlier by David frommeyer, if the Native American Church in Oregon gets an exemption from the drug laws for its religious practices wouldn't any other religious groups be entitled to exceptions. Where does it in motion would be required for other other sincere claims that they use of peyote's part of their religion. Yes, I do believe it would be required under normal constitutional analysis for other peyote churches such as the Peyote Way Church of God.
00:23:41Which have the same exact conditions that the Native American Church does.
00:23:47And there are a number of conditions that go to that show that this church or the use of peyote is unique. However, I find a church that uses that as part of its religious. I think we can get into a lot of examples and I don't want to go down that road too far because we don't have the facts here, but the fact is in a number of Courts have looked at marijuana and they have concluded that marijuana contribute substantially to the law enforcement problem that has been the distinguishing factor in a number of cases.
00:24:31This drive does not contribute to the law enforcement. This substance is used by US as used and its sacramental purposes by the church does not cause those problems as you heard Justice O'Connor presented Dorsey with a slippery slope if the court allowed an exception for peyote. Why stop there what about other drugs Dorsey attempted to distinguish reality from marijuana suggesting? Marijuana is a gateway drug by peyote at least used in religious ceremonies is not but their doors he runs into a problem. He was essentially conceding that the government can simply declare a law enforcement problem with one drug, but not with another but if the legislature can say marijuana use creates a law enforcement problem with little evidence to support it and us can prohibit. It's used in religious ceremonies. Why can't it do that with peyote Justice Scalia points this
00:25:20This substance is used by US as used and it's sacramental purposes by the church does not cause those problems only because laws not enforced. I mean, why is it on the reservation in the law enforcement authorities? Say it is or what it means is it doesn't contribute to the use of other drugs. It doesn't undermine the the federal government or the nation's law enforcement efforts for Other Drug. It doesn't get into the distribution system. It's not one of the drugs that has looked to buy other people as a recreational Subs with why can't the snake consider it itself as the law enforcement problem.
00:26:10Are Woody Herman you see even in religious Services now the state may consider the very use of marijuana regardless of whether it pollutes Commerce or anything else as being itself a problem. We don't want to use the state can look at it as the problem itself, but word it is my position strongly if they have to justify that position by showing some actual harm otherwise
00:26:37There would really be no free exercise, right? Because the steak without law any kind of conductance a long as it doesn't generally I think why isn't that right, long as it doesn't pick on a particular religion has a gentle and sufficient reason and the neutral quote on quote prescription does affect a particular religion only Justice Scalia made a key distinction. They're clearly a law that singles out a specific religious community for different treatment or a law that specifically targets one religious practices would be unconstitutional. But what if Allah just happens to win friends are religious practice perhaps by accident may be a law against littering past because of community thinks littering for any reason is bad in fringes on the religious practices of a cult of litters. Does that make the littering law unconstitutional should the cult of leader is get an exception to the law carved out just for them Dorsey said the way to resolve this problem is to look for harm if the relays
00:27:37Practice cause actual harm to others that it can be burdened. Otherwise an exception should we met because neutral laws are not always neutral and their impact a neutrally written lock and still in French or right or unjustly discriminate when it is applied after brief rebuttal by David frommeyer the court concluded oral argument in Employment Division vs. Smith. Would it apply the Sherbert test and protect the right to use peyote as part of religious free exercise or what it reverse the Oregon Supreme Court and hold it the free exercise clause is not violated by a law that applies to everyone on April 17th 1990 the Supreme Court ruled 623 against Smith and black and held it the first time and it was not a shield for those whose religious practices involves the use of illegal drugs Justice Sandra Day O'Connor concurred only in the judgment and liberal Justice Harry blackmun to send it to join by justices William Brennan and Thurgood Marshall Justice Scalia a Reagan appointee in a devoted Catholic announce the majority opinion of the Court criminal law against the mind-altering drugs include
00:28:37Peyote and constitutionally be applied to the respondents sacramental use of peyote in ceremonies of the Native American Church the Oregon Supreme Court held up because of the free exercise clause of the First Amendment. It could not weary verse that judgment the First Amendment prevents the government from prohibiting the free exercise of religion clothes quote our cases establish that this prevents the government from penalizing adherence to a religious position or the profession of a religious belief. It also prevents the government from penalizing and action only because that action is taken for religious reasons or only because of their religious beliefs that action displays but respondents need to carry the meaning of prohibiting the free exercise of religion one large step further, they contend that a religious motivation for engaging in legally prohibited action or failing to take legally required action places the citizen beyond the reach of a law that is not specifically directed at his religious.
00:29:37And that is considered Lee Constitution was applied to others. We reject that interpretation respondents contention that are pressing. It requires a religious practice exemption to generally applicable laws is mistaken a long line of our decisions has held that an individual's religious beliefs do not exclude him from compliance with an otherwise valid law example laws prohibiting polygamy laws regulating the use of child labor laws requiring individuals to perform military service and laws compelling individual pay taxes, you reject respondents argument that government actions burning religion must be justified by a compelling governmental interest. The government's ability to enforce its criminal laws like its ability to carry out other aspects of public policy and not depend on measuring the effect of a governmental action on a religious objectors Spiritual Development to make an individual's obligation to obey such a law contingent upon the laws coincidence with his religious beliefs.
00:30:37Except where the state's interest is compelling permitting him by virtue of his of his belief to become a law unto himself contradict both constitutional tradition and common sense in his full written Justice Scalia when he was even stronger language to reject the old Trevor test which applied strict scrutiny to any laws burning religious practices, no matter how neutral any society adopting such a system. Scalia would be courting. Nrt. Apparently taking Justice scalia's grave warning as a dare Democratic Congress members Chuck Schumer of New York and Ted Kennedy of Massachusetts introduced legislation to counteract Employment Division V Smith and impose a tougher standard and free exercise cases cruising on outrage among both religious conservatives and social liberals through the Smith decision Congress seize the moment in 1993, the religious freedom restoration. Act passed nearly unanimously in both houses of Congress President Bill Clinton signed the bipartisan bill into law that November
00:31:34We all have a shared desire here to protect perhaps the most precious of All American Liberties religious freedom.
00:31:43Usually the signing of legislation by President is a ministerial act off on a quiet ending to a turbulent legislative process today this assumes and more Majestic probably because of our ability together to affirm the historic role that people affected played in the history of this country and the Constitutional protections those who profess and express their faith have always demanded and cherished.
00:32:12How are the reverse legislation by legislation a decision of United States Supreme Court is a power that is rightly hesitantly and infrequently exercised by the United States Congress, but this is an issue.
00:32:28in which we at that Extraordinary Measures was clearly call for
00:32:34The vice-president said this act reverses the Supreme Court's decision Employment Division against Smith and re-establish is a standard that better protects. All Americans of all faiths in the exercise of their religion in a way that I am convinced is far more consistent with the intent of the founders of this nation than the Supreme Court decision.
00:32:58More than 50 cases have been decided against individuals making religious claims against government action since that decision was handed down this will help to reverse that Trend by honoring the principle that are laws and institutions should not impede or hinder but rather should protect and preserve fundamental religious Liberties Renfro as the law is now widely known codified the sherbet compelling interest test for burns play some religious exercise the law reads quote government shall not substantially burden a person's exercise of religion, even if the burden results from a rule of General applicability furthermore quote government May exercise, if government has a compelling interest and the burden is the least restrictive means of furthering that in this fight was President Clinton said at the time however, refer doesn't really reverse the Supreme Court's decision in Employment Division vs. MIT that case Still Remains good law enforcement free exercise cases. What river does is give
00:33:58Religious plain it's a different way to sue the government for burning their religious beliefs rather than file a constitutional claim under the First Amendment. They can now Sue under rifra remember that the government is free to pass laws that provide more rights for protections to Citizens than those found in the Constitution the Constitution only prevents the government from protecting she were right. It's a floor not a ceiling. So now religious playlist is suing a roof rack can hold the government to a tougher standards than the constitution of loan requires that the impact of river has been profound in a weird Twist of political fate an actor originally introduced by Democratic members of Congress and signed into law by Democratic president is now associated with and most heavily promoted by cultural conservatism the Republican party. Why is that according to law professor Robert delahunty and others the rake and I conservative thinking in the late 1980s which Justice Scalia was perhaps seeing is adherent was that the major religious institutions in America the Catholic and Protestant Christian churches were the ones with the most power over federal and state laws. So you didn't need to carve out free exercise.
00:34:58Exceptions to general laws because those laws already reflected the will of the majority religion. The only people seeking religious exceptions belong to minority religions like the Native American church for the Jehovah's Witnesses and their claims weren't seeing is important but early 1990s the Democrats had control of both houses of Congress and the presidency and an increase concern for minority rights was blossoming at the same time conservative fear being relegated to minority status buy a new wave of religious diversity began to grow since then America has seen a loosening of the hold a conservative Christianity on state and federal law the demise of any sodomy laws in 2003 in the case of Lawrence versus Texas as well as the proliferation of anti-discrimination laws and ordinances protecting sexual orientation archaea examples. This River was embraced by conservatives as a way to retain their moral influence on politics, or at least not have to follow liberal policies to which they Jack after the Supreme Court ruled in a 1997 case called city of Boerne vs. Flores that the federal refer didn't apply to the states many states LED mostly by Republican legislators and Governor's past their own versions.
00:35:58For example, Indiana past its own version of river in March 2015. Its robust language did not just caught a fly the Sherbert test. However, it also created a defense for religious objections to using judicial or administrative proceedings involving violations of state or local civil rights laws, the Indiana Law received widespread National criticism as an attempt to legalize Andy gay discrimination as for the federal roof rat the Springport cause even more controversy with the weight recently interpreted it in the 2014 case of Burwell vs. Hobby Lobby and entire episode of heightened scrutiny can be dedicated to this case but the short of it. Is this the Affordable Care Act also known as Obamacare required for-profit companies to ensure access to contraceptives and their health care plans, but the Green family owners of Hobby Lobby, are there Conservative Christian beliefs were intertwined with your business but also substantially burned by this contraceptive mandate and they suit under the federal roof the federal refer as noted earlier prohibits the government from substantially burdening quote a person's exercise of religion.
00:36:58The law itself doesn't Define person in Hobby Lobby the Supreme Court ruled that person for the purposes of rifra inconsistent with other provisions and federal law includes closely-held corporations, like Hobby Lobby and nuts Hobby Lobby could sue into rifra in the Supreme Court also ruled that the contraceptive mandate no neutral and its application and not meant to Target any specific religious beliefs substantially burden Hobby Lobby's religious exercise in a major ruling today. The Supreme Court said that some employers cannot be forced to cover birth control in their health plans if that violates their religious beliefs contraceptive-coverage had been mandated for employers under Obamacare. The decision was 5 to 4 with Chief Justice John Roberts providing the Swing Vote and you may recall he was the Swing Vote in the ruling two years ago that upheld most of Obamacare Jen Crawford has more about today's decision and what it'll me.
00:37:54The case was a political Firestorm. MTG women's right against religious freedom inside the court that Justice is also were deeply divided and sharply at odds and their approach to the case the majority decision by Justice Samuel Alito emphasized religious rights and marks. The first time the court has allowed a for-profit corporation this type of religious exemption. It was a victory for family-owned companies like the Hobby Lobby chain of arts and crafts stores whose owners David and Barbara green challenge. The law the court said the healthcare law clearly imposes a substantial burden on the greens religious beliefs because it requires them to offer coverage for specific forms of birth control like the morning after pill and IUD with the greens belief facilitate abortion.
00:38:47Despite Congress having embraced exactly the kind of religious Anarchy. He'd warned against in Employment Division vs. Smith Justice Scalia. Join Justice Samuel alito's majority opinion and Hobby Lobby Scalia did not write a separate concurring opinion. However, instead offering only silent support for the Court's ruling ultimately the legacy of Employment Division vs. Smith is defined more by the Legislative response to it. Then it's actual holding a federal statute not the first amendment is now the primary tool for religious objectors to vindicate their beliefs and carve out exceptions to general laws that otherwise apply to all
00:39:22Thank you for listening to this episode of heightened scrutiny. You can support this podcast by visiting its website scrutiny pod.com by liking on Facebook the following it on Twitter about subscribing to a via iTunes Google play another podcast Services a very special. Thanks is O2 donor Matt for his generous contribution you too can support heightened scrutiny financially heightened scrutiny has launched a campaign through patreon. You have the option to donate on a recurring monthly basis any of that you choose to help keep heightened scrutiny going producing this podcast is not free and it takes a considerable amount of time and effort. If you enjoy it, please check out patreon.com pod for more information again. I hope you enjoy this episode will keep turning at

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