Leiter Argues against Religious Exemptions on Al Jazeera America
Just societies enact laws to promote the general welfare. Some people, invariably, refuse to comply with those laws, and they face sanctions in accordance with them.
In the United States, however, we have institutionalized a right of noncompliance to the law, to the detriment of society as a whole. Its latest outrageous expression is the attempt by Roman Catholic businesses to avoid contraceptive coverage as part of the Affordable Care Act.
America is a religious country, to be sure, but it is also unique among democratic societies for the extent to which it grants religious believers special exemptions from complying with the laws that apply to the rest of us. In 1990, in Employment Division v. Smith, the U.S. Supreme Court, in an opinion by Justice Antonin Scalia, a conservative, tried to put a stop to this legal inequity, noting that "the right of free exercise (of religion) 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).'" At issue was denial of unemployment benefits to Alfred Smith, an Oregon drug-rehabilitation counselor, after he was fired, but for cause: He had lost his job because he had tested positive for use of an illegal narcotic, but one required by the rituals of the Native American religion to which he subscribed. The court concluded that the state did not have to carve out exceptions to a law regulating illegal narcotics to accommodate religious believers.