Since the topic for today seems to be "religious liberty" as defined by various columnists and cable-news stars, maybe we should fire up the Wayback Machine and take a look at a case that went all the way to the Supreme Court, which decided (in the voice of arch-Papist Antonin Scalia) that the secular law need not bow to someone's religious "conscience," even as regards the performance of the sacred liturgy of that person's faith.

(Imagine, if you will, the outcry if the FDA demanded to test all the sacramental wine in all the rectories in America to make sure it hadn't gone bad.)

On April 17, 1990, the Supreme Court decided the case of Employment Division, Department of Human Resources of Oregon vs. Smith. In that case, two men were fired from their jobs as drug-rehabilitation counselors because, as part of their worship service in the Native American Church, they regularly ingested peyote. (It should be noted here that peyote has been regarded as a sacrament in these religions since long before anyone else came up with bread and wine.) They were also denied unemployment benefits for this same reason. They managed to get a ruling from the Oregon Supreme Court reinstating their benefits, but Oregon appealed the case to Washington and, by a 5-4 vote, the Supreme Court reversed the Oregon court's ruling and decided against the two men.

This was clearly a decision in which the court decided that the practice of a religious liturgy, which is certainly more dear to an informed religious conscience than is the accidental collision between the secular law and a discredited doctrine, could be circumscribed because it was contrary to the secular law. Writing for the majority, Justice Scalia said:

We have never held that an individual's religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate. On the contrary, the record of more than a century of our free exercise jurisprudence contradicts that proposition.

And, also (quoting Justice Frankfurter):

Conscientious scruples have not, in the course of the long struggle for religious toleration, relieved the individual from obedience to a general law not aimed at the promotion or restriction of religious beliefs.

And, also, too:

Subsequent decisions have consistently held that the right of free exercise does not relieve an individual of the obligation to comply with a "valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes)."

And, finally:

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; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.

In other words, Native Americans should have had a better lobby.

Charles P. Pierce Charles P Pierce is the author of four books, most recently Idiot America, and has been a working journalist since 1976.

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