In 2015, a few months before he died, Supreme Court justice Antonin Scalia spoke to law students at Georgetown University in Washington, D.C. In the question-\u00adand-answer period a student asked Scalia whether courts have a responsibility to protect minorities that can\u2019t win rights through the political process.<\/p>\n
Scalia\u2019s response was typically blunt. No, he said. Protection of minority rights isn\u2019t up to courts; it needs to be sorted out within the political process.<\/p>\n
\u201cYou either believe in a democracy or you don\u2019t,\u201d he said.<\/p>\n
You can\u2019t say that Scalia wasn\u2019t consistent in his views. More than two decades earlier, his loyalty to this simple idea had dramatically upended decades of strong constitutional protection for America\u2019s religious minorities. In 1990 Scalia wrote the majority opinion in Employment Division v. Smith<\/i>, a case involving two members of a Native American faith who used an illegal substance\u2014peyote\u2014as part of their traditional religious practices.<\/p>\n
Scalia\u2019s reasoning was straightforward. Oregon\u2019s laws relating to illegal drug use applied equally to all citizens of the state. Yes, in this particular situation these laws happened to obstruct religious free exercise, but they didn\u2019t intentionally target<\/i> religion for disfavored treatment. And so, end of story.<\/p>\n
The upshot, according to Scalia, is that if religious minorities require special legal accommodation for their practices, they must seek it from legislatures, not the courts.<\/p>\n
Scalia freely acknowledged that religious minorities with \u201creligious practices that are not widely engaged with\u201d will be placed at a \u201crelative disadvantage\u201d within the political arena. But this, he said, is an \u201cunavoidable consequence of democratic government.\u201d<\/p>\n
The Problem With Democracy<\/strong><\/p>\n Religious freedom is much like free speech. Popular, uncontroversial speech doesn\u2019t need legal protection. Popularity provides its own defense. Instead, if you want to measure the strength of a nation\u2019s free-speech laws, look at how they deal with uncomfortable speech, or speech that deliberately throws grenades at the opinions of polite society.<\/p>\n In the same way, if you want to get the true measure of America\u2019s religious freedom, don\u2019t look at the Baptist or Presbyterian church down the road. Instead, focus on how our laws treat religious minorities, whose beliefs and practices may at times seem odd or even downright offensive.<\/p>\n When our own religious freedom rights are comfortably protected, we tend to forget that minorities and majorities in a democracy are not set in stone. They can and do change over time.<\/p>\n In hindsight, there\u2019s an exquisite irony in Scalia\u2019s Smith<\/i> opinion. When Scalia casually dismissed the political difficulties faced by religious minorities, he had little reason to suspect that his own<\/i> religious freedom protection could be weakened by Smith<\/i>. Scalia\u2019s conservative Roman Catholic beliefs and practices were clearly, at the time, in line with America\u2019s cultural and religious norms.<\/p>\n Today? It\u2019s not so clear-cut. Recent national surveys show that Scalia\u2019s traditional Catholic views on human sexuality, for instance, now fall into the bucket of \u201cminority religious beliefs and practices.\u201d America\u2019s religious demographics have shifted and continue to shift. Not only does regular Christian church attendance continue to decline, but a fast-\u00adgrowing number of Americans identify as religious \u201cnones\u201d\u2014unwilling to affiliate themselves with mainstream religious institutions or beliefs.<\/p>\n It\u2019s fair to wonder: In today\u2019s environment, would Scalia still be content to leave religious freedom protections to the benevolent care of America\u2019s political majority?<\/p>\n A Christian-centric Nation<\/strong><\/p>\n In America the default religious norm has historically been Christianity, and our culture and laws reflect that reality. We see it in the Sunday \u201cblue laws\u201d that are still on the books in some states. We see it in the roster of official public holidays given to school students. We see it in the ways that Christian symbolism and sentiments are woven into the fabric of our civic life\u2014from our currency to our Pledge of Allegiance.<\/p>\n Our society and its institutions have organically developed in ways that accommodate the religious practices of a Christian majority. Thus, it\u2019s the religious minorities who\u2019ve long had the burden of seeking accommodation for their nonmainstream religious practices: a Sikh boy who wants to wear his kirpan to school; a Muslim prisoner who wants to wear a short beard\u2014an exception to prison regulations; an employee who\u2019s a Saturday Sabbath keeper; a Muslim woman who wants to wear a hijab on the job. Or a First Nations tribe whose \u201cchurch sanctuary equivalent\u201d is a piece of sacred land that\u2019s being threatened by mining rights.<\/p>\n The twist today, of course, is that some from America\u2019s historical religious majority are, on occasion, experiencing what it\u2019s like to be part of a cultural minority. Where once evangelical leader Pat Robertson declared Islam to be \u201ca political movement masquerading as a religion,\u201d evangelical Christianity is now labeled by some on the secular left as \u201cLGBTQ+ hatred masquerading as religious belief.\u201d<\/p>\n Regardless of who\u2019s in the majority and who\u2019s in the minority at any given time, though, the central problem remains the same: democracy is a poor mechanism for protecting minority rights. In a democracy it\u2019s the majority that creates and enforces laws and builds society in its own image. That\u2019s true regardless of whether the majority is Christian or secular.<\/p>\n Getting It Right<\/strong><\/p>\n Back in the 1970s, philosopher John Rawls proposed an excellent thought experiment for assessing whether the laws of a society were fair for everyone.<\/p>\n Pretend you\u2019re making laws from behind a \u201cveil of ignorance.\u201d You have no idea whether you\u2019re White or Black or Asian. You don\u2019t know whether you\u2019re a conservative Christian or a committed atheist. You could be a woman or a man. You could hold traditional religious views about human sexuality, or you could identify with the LGBTQ+ community. Perhaps you\u2019re financially well off. But then again, you could be a gig-economy worker who\u2019s barely making ends meet.<\/p>\n Now, go ahead and create laws that you\u2019ll be happy with once you step outside the \u201cveil of ignorance\u201d and discover your own racial identity, religious beliefs, and socioeconomic status.<\/p>\n It\u2019s not so easy! For now, despite changing demographics, Christianity in America still holds much of its historical cultural dominance. But in the face of what some perceive as impending minority status, some Christians seem intent not only on retaining cultural power but expanding it through political means. Look no further than the recent attempt in Texas to mandate the posting of the Ten Commandments in every public school classroom.<\/p>\n Perhaps, instead, we should spend more time considering the problems we face as a society from behind a \u201cveil of ignorance\u201d\u2014seeking ways to protect both majority and<\/i> minority rights. Or perhaps we could use a simpler, even better known, thought experiment proposed 2,000 years ago by Christianity\u2019s central figure: \u201cDo to others as you would have them do to you.\u201d<\/p>\n","protected":false},"excerpt":{"rendered":" In 2015, a few months before he died, Supreme Court justice Antonin Scalia spoke to law students at Georgetown University in Washington, D.C. In the question-\u00adand-answer period a student asked Scalia whether courts have a responsibility to protect minorities that can\u2019t win rights through the political process. Scalia\u2019s response was typically blunt. No, he said.<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_monsterinsights_skip_tracking":false,"_monsterinsights_sitenote_active":false,"_monsterinsights_sitenote_note":"","_monsterinsights_sitenote_category":0,"footnotes":""},"categories":[355],"tags":[187],"class_list":["post-6675","post","type-post","status-publish","format-standard","hentry","category-september-october-2023","tag-september-october-2023"],"aioseo_notices":[],"_links":{"self":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6675","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/users\/1"}],"replies":[{"embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/comments?post=6675"}],"version-history":[{"count":0,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/posts\/6675\/revisions"}],"wp:attachment":[{"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/media?parent=6675"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/categories?post=6675"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/www.charming-bohr.160-238-31-172.plesk.page\/index.php\/wp-json\/wp\/v2\/tags?post=6675"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}