Kagan Throws Scalia's Own Religious Liberty Arguments Back In His Face - TPMDC

[happyslug]

4. Here is Scalia in Employment Division v Smith, the 1990 case cited:

http://www.law.cornell.edu/supremecourt/text/494/872

The problem is one that Employment Division vs Smith involved the use of an ILLEGAL SUBSTANCE under both Federal and State law.''

Respondents' claim for relief rests on our decisions in Sherbert v. Verner, supra, Thomas v. Review Board, Indiana Employment Security Div., supra, and Hobbie v. Unemployment Appeals Comm'n of Florida, 480 U.S. 136 (1987), in which we held that a State could not condition the availability of unemployment insurance on an individual's willingness to forgo conduct required by his religion. As we observed in Smith I, however, the conduct at issue in those cases was not prohibited by law. We held that distinction to be critical, for if Oregon does prohibit the religious use of peyote, and if that prohibition is consistent with the Federal Constitution, there is no federal right to engage in that conduct in Oregon,

Please note Scalia in his opinion cites Hobbie v. Unemployment Appeals Comm'n of Florida, an 1987 case written by Brennan, but agreed to be Scalia:

Where the state conditions receipt of an important benefit upon conduct proscribed by a religious faith, or where it denies such a benefit because of conduct mandated by religious belief, thereby putting substantial pressure on an adherent to modify his behavior and to violate his beliefs, a burden upon religion exists. While the compulsion may be indirect, the infringement upon free exercise is nonetheless substantial.

http://www.law.cornell.edu/supremecourt/text/480/136

Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707
http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=US&vol=450&invol=707

Thomas v. Review Bd. of Indiana Employment Security Div., 450 U.S. 707 is the 1981 case cited in the above cases:

The court found this position inconsistent with Thomas' stated opposition to participation in the production of armaments. But Thomas' statements reveal no more than that he found work in the roll foundry sufficiently insulated from producing weapons of war. We see, therefore, that Thomas drew a line, and it is not for us to say that the line he drew was an unreasonable one. Courts should not undertake to dissect religious beliefs because the believer admits that he is "struggling" with his position or because his beliefs are not articulated with the clarity and precision that a more sophisticated person might employ.

The Indiana court also appears to have given significant weight to the fact that another Jehovah's Witness had no scruples about working on tank turrets; for that other Witness, at least, such work was "scripturally" acceptable. Intrafaith differences of that kind are not uncommon among followers of a particular creed, and the judicial process is singularly ill equipped to resolve such differences in relation to the Religion Clauses. One can, of course, imagine an asserted claim so bizarre, so clearly nonreligious in motivation, as not to be entitled to protection under the Free Exercise Clause; but that is not the case here, and the guarantee of free exercise is not limited to beliefs which are shared by all of the members [450 U.S. 707, 716] of a religious sect. Particularly in this sensitive area, it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith. Courts are not arbiters of scriptural interpretation....

The mere fact that the petitioner's religious practice is burdened by a governmental program does not mean that an exemption accommodating his practice must be granted. The state may justify an inroad on religious liberty by showing that it is the least restrictive means of achieving some compelling state interest. However, it is still true that "[t]he essence of all that has been said and written on the subject is that only those interests of the highest order . . . can overbalance legitimate claims to the free exercise of religion." Wisconsin v. Yoder, supra, at 215.

The purposes urged to sustain the disqualifying provision of the Indiana unemployment compensation scheme are two-fold: (1) to avoid the widespread unemployment and the consequent burden on the fund resulting if people were permitted to leave jobs for "personal" reasons; 12 and (2) to [450 U.S. 707, 719] avoid a detailed probing by employers into job applicants' religious beliefs. These are by no means unimportant considerations. When the focus of the inquiry is properly narrowed, however, we must conclude that the interests advanced by the State do not justify the burden placed on free exercise of religion.

There is no evidence in the record to indicate that the number of people who find themselves in the predicament of choosing between benefits and religious beliefs is large enough to create "widespread unemployment," or even to seriously affect unemployment - and no such claim was advanced by the Review Board. Similarly, although detailed inquiry by employers into applicants' religious beliefs is undesirable, there is no evidence in the record to indicate that such inquiries will occur in Indiana, or that they have occurred in any of the states that extend benefits to people in the petitioner's position. Nor is there any reason to believe that the number of people terminating employment for religious reasons will be so great as to motivate employers to make such inquiries.

Neither of the interests advanced is sufficiently compelling to justify the burden upon Thomas' religious liberty. Accordingly, Thomas is entitled to receive benefits unless, as the respondents contend and the Indiana court held, such payment would violate the Establishment Clause.

The 1963 Case. SHERBERT v. VERNER, 374 U.S. 398 (1963)

http://caselaw.lp.findlaw.com/cgi-bin/getcase.pl?navby=case&court=us&vol=374&invol=398

In that case the Court ruled that while a State can declare one day a week a uniform day of rest (ban ALL work one day of a week, even if it is Sunday) but if the State then exempts from that day of rest people in a certain people in certain jobs EXCEPT if that day is their day of rest, that is a religious exemption that is only legal if extended to other people and their day of rest, i.e. Seventh Day evangelists and being off work Saturday, when everyone else can take Sunday off. Jews can take Saturday off, Muslim could take a Friday off (Through Muslim's holy day is NOT a day of rest as that term is used in Jewish and Christian Tradition). Thus a State can ban Sunday Employment except for certain jobs (Just exemptions have always occurred because emergency work has to be done on even days of rest), but if the state then makes a further exemption from the exemption, but this time based on religion, and makes no such exemption for people whose holy day is another day of the week, that is unconstitutional.

In these respects, then, the state interest asserted in the present case is wholly dissimilar to the interests which were found to justify the less direct burden upon religious practices in Braunfeld v. Brown, supra. The Court recognized that the Sunday closing law which that decision sustained undoubtedly served "to make the practice of [the Orthodox Jewish merchants'] . . . religious beliefs more expensive," 366 U.S., at 605 . But the statute was nevertheless saved by a countervailing factor which finds no equivalent in the instant case - a strong state interest in providing one uniform day of rest for all workers. That secular objective could be achieved, the Court found, only by declaring Sunday to be that day of rest. Requiring exemptions for Sabbatarians, while theoretically possible, appeared to present an administrative [374 U.S. 398, 409] problem of such magnitude, or to afford the exempted class so great a competitive advantage, that such a requirement would have rendered the entire statutory scheme unworkable. 8 In the present case no such justifications underlie the determination of the state court that appellant's religion makes her ineligible to receive benefits. 9

IV.

In holding as we do, plainly we are not fostering the "establishment" of the Seventh-day Adventist religion in South Carolina, for the extension of unemployment benefits to Sabbatarians in common with Sunday worshippers reflects nothing more than the governmental obligation of neutrality in the face of religious differences, and does not represent that involvement of religious with secular institutions which it is the object of the Establishment Clause to forestall. See School District of Abington Township v. Schempp, ante, p. 203. Nor does the recognition of the appellant's right to unemployment benefits under the state statute serve to abridge any other person's religious liberties. Nor do we, by our decision today, declare the existence of a constitutional right to unemployment benefits on the part [374 U.S. 398, 410] of all persons whose religious convictions are the cause of their unemployment. This is not a case in which an employee's religious convictions serve to make him a nonproductive member of society. See note 2, supra. Finally, nothing we say today constrains the States to adopt any particular form or scheme of unemployment compensation. Our holding today is only that South Carolina may not constitutionally apply the eligibility provisions so as to constrain a worker to abandon his religious convictions respecting the day of rest. This holding but reaffirms a principle that we announced a decade and a half ago, namely that no State may "exclude individual Catholics, Lutherans, Mohammedans, Baptists, Jews, Methodists, Non-believers, Presbyterians, or the members of any other faith, because of their faith, or lack of it, from receiving the benefits of public welfare legislation." Everson v. Board of Education, 330 U.S. 1, 16 .

Unemployment Compensations was a huge source of Separation of Church and State AND no infringement on religion. The above cases are the key cases in the Hobby Lobby case, and they do NOT make the Hobby Lobby case easy. The government is forbidden to infringe on religious freedom (the above unemployment Compensation cases), but is permitted to pass neutral laws that do infringe on freedom of religion (The Peyote case).