What’s wrong with this sentence? “To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the state’s interest is compelling—permitting him, by virtue of his beliefs, to become a law unto himself—contradicts both constitutional tradition and common sense.”
Contorted as it is, this sentence and others from Supreme Court Justice Antonin Scalia’s opinion in the case Employment Division v. Smith have thrown religious liberty jurisprudence into confusion. Washington editor Kim Lawton, who has covered the Supreme Court since 1985, waded up to her ear lobes in legalese to prepare this issue’s cover story. She emerges on page 38 with a clear report on a muddled situation.
Recent Court decisions have so scrambled the understanding of the Constitution’s religion clauses that no clear precedents remain for deciding questions of religious liberty. The confusion is “a First-Amendment lawyer’s bonanza,” says counsel Oliver Thomas of the Baptist Joint Committee. “We can make a good living running around the country litigating the same school prayer decision or the same landmark case over and over again in different states.” But joking aside, says Thomas, “it’s a poor way to run a society, and it’s precisely why we have a Bill of Rights—to place certain values, including the freedom of religion, beyond the reach of the political majority.”
KEN SIDEY, Associate Editor
