From: titmas@chdasic.sps.mot.com (Eric Titmas)
Newsgroups: alt.atheism,sci.skeptic
Subject: Re: Bush interview as quoted in Alt.Atheism FAQ
Date: 19 Aug 92 22:17:31 GMT
Distribution: world,local
Organization: SPS

In article <1992Aug19.000224.5519@colorado.edu>, bear@tigger.cs.Colorado.EDU (Bear Giles) writes:

|> That's what makes the Court's decision to uphold the DEA's ban on peyote
|> ceremonies more galling -- not only does it violate the Freedom of Religion
|> clause of the First Amendment (IMHO), it is being enforced in a legally
|> sovereign nation!  (I haven't read the treaties, but I suspect they require
|> compliance with U.S. laws, not necessarily U.S. government agencies'
|> regulations).

From "Turning Right the Making of the Rehnquist Supreme Court" by David Savage

     The Court had little trouble enforcing the freedom of religious beliefs and
     conscience,  but problems arose when religious practices clashed with the 
     practices and beliefs of the majority.  What about polygamy among Mormons,
     Christian Scientists who refuse medical care for their gravely ill child,
     Amish parents who refuse to send their children to school in defiance of
     the compulsory schooling laws,  Jewish soldiers who want to wear skullcaps
     with their military uniforms,  or Seventh Day Adventists who seek state
     unemployment benefits but refuse to work on Saturday?  How is the Court to
     decide when an individual's claim to the "free exercise" of religion con-
     flicts with a general law or government policy?

     In the early 1960s the Warren Court and Justice Brennan had worked out an 
     approach  to these cases... . Because the right to practice religion is
     fundamental,  the government may not infringe on a religious practice unless
     it had a "compelling interest."  ...the Court ordered Wisconsin to waive
     its compulsory schooling laws for the Amish children.  ... The gravely ill
     child of the Christian Scientists could be administered medical care despite
     the religious wishes of her parents,  because the government's interest was
     compelling in that instance.

     Over the years,  the Court's religious liberty rulings had become hard to 
     reconcile.  ... Could the Jewish serviceperson wear a skullcap?  No,  the
     Court said.  No exceptions to the standard military uniform.  Could a Muslim
     prisoner be exempted from a midday work detail to attend worship services? 
     No.  No exceptions.  Could a Seventh Day Adventist receive unemployment bene-
     fits despite a refusal to work Saturdays?  Yes.  The government cannot force
     a person to ignore the practice of his or her religion.
  
     ...When Scalia joined the Court,  he thought the religion cases made no sense.
     He wanted clear and firm rules,  but the religion cases seemed to turn on the 
     whim of one or two justices.  They would weigh the importance of the religious
     practice on the one hand and its significance to the government on the other 
     hand.  The Amish who won the right to keep their children out of school lost
     later when they asked for a religious exemption to paying Social Security taxes.
     Staying away from school was one thing,  but not paying your taxes was quite
     another,  the majority said.  Scalia abhorred these so called balancing tests.
     He favored a clear rule that would sweep aside all these cases.  In the peyote
     case,  he got his chance.

     Alfred Smith,  a Klamath Indian,  and Galen Black,  a non-Indian who had recently
     converted to the Native American church,  worked as county drug counselors in
     Cascadia,  Oregon.  Both were recovered alcoholics and had agreed as a condition
     of their employment to refrain from using alcohol or other drugs.  In 1983,
     however,  both admitted to ingesting peyote during a Native American church
     ceremony. ...

     ... Smith and Black were fired from their jobs,  and the state later denied them
     unemployment benefits because they had been dismissed for "misconduct".  They
     sued,  claiming their rights to the "free exercise" of religion had been violated,
     and they won.  The use of peyote is illegal in the state,  the Oregon Supreme
     Court said,  but the First Amendment demands that the Native Americans (sic)
     be exempted from the law.  The state appealed,  and the justices agreed to decide
     the case of _Oregon v. Smith and Black_.

      ...Given an opportunity,  Scalia promptly rewrote First Amendment law on the 
     "free exercise" of religion.

     The government no longer need show it has a "compelling interest" to win a case
     where it was challenged on religious grounds,  Scalia asserted.  Rather,  a
     "valid and neutral law" which does not single out a religion,  will be upheld,
     he insisted,  even if it stifles the practice of a religion.  "Any society...
     would be courting anarchy,"  Scalia said,  if it tried to shield all religious
     practices and determined to "coerce or suppress none of them. ...We cannot afford
     the luxury,"  he added,  of carving out "constitutionally required religious
     exemptions" for every ... religion. ...

     ..."It may fairly be said that leaving accommodation to the political process
     will place at a relative disadvantage those religious practices that are not widely
     engaged in,"  Scalia wrote.  "But that unavoidable consequence of democratic
     government must be preferred to a system...in which each conscience is a law unto
     itself and in which judges weigh the social importance of all laws against the
     centrality of all religious beliefs."
 
 ...
   
     ...the peyote case was distinctively Scalia's.  He had taken a small case and used
     it to sweep aside nearly 30 years of precedent.  "He's the only one [of the nine]
     who would have done that,"  one clerk noted.  While the other justices reflexively
     decided cases by juggling the existing precedents,  Scalia would gladly brush them
     aside to set forth a clear principle.  In this case,  the principle was that gen-
     eral laws that apply to all must prevail over individuals seeking a special exemption.

     Scalia had also pushed Rehnquist aside as the hero for the younger generation of
     conservative lawyers at the Court and at the Justice Department.  "The real battle
     is between law and politics,  and Nino is the one who is fighting it up there,"
     said an attorney who had clerked at the Court and worked in the Bush administration.
     Scalia grappled with the big ideas and principles and sought to apply them in a 
     neutral manner.  That was law,  they said.  The rest was just politics.

     Rehnquist had slipped a notch or two in their estimation.  He was commonly described
     as the flip side of Brennan,  a politically oriented conservative.  "I was surprised
     to see how political he was,"  said one conservative clerk after a year at the Court.
     "He doesn't put a lot of effort into his opinions,"  he said.  Rehnquist cared about
     getting the right result,  where Scalia cared about getting the reasoning right, they
     said.

     The chief justice could be counted on to back the government and to rule against indiv-
     uals claiming their constitutional rights were violated.  Usually Scalia agreed with him,
     but sometimes the Constitution set forth an entirely clear principle of individual rights,
     a principle that Scalia would defend with the same zeal he had shown in attacking what
     he saw as phony constitutional rights such as abortion.

Now to get back to the Bush interview as quoted in alt.atheism FAQ.  How did Bush's
extemporaneous remark cause Scalia's opinion?

-- 
Eric Titmas      Motorola ASIC       titmas@chdasic.sps.mot.com               

It is impossible to take in more money than Congress can spend.  - Thomas Sowell
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