In 2011, then Supreme Court Justice, Antonin Scalia, testifying before the Senate Judiciary Committee, sought to educate the committee regarding American exceptionalism; in other words, the greatness of America. He explained that America is not great because of the First Amendment guaranteeing freedom of speech, freedom of religion, or even freedom of assembly. In his view, America is great or exceptional because of her form of government that creates a separation of powers that results in checks and balances between the different branches of government. What does all that fancy legal language mean? In essence, we have a divided government. The federal government and our state governments, as well, are divided into three branches: legislative, executive, and judicial.
The legislature enacts the laws; the executive enforces the laws; and the judiciary interprets the laws. These branches of government are considered co-equal. This means the president’s power is not greater than that of Congress and Congress’ power is not greater than that of the Supreme Court. There is a system of checks and balances that exists between the three branches of government.
If Congress passes a bill and the President believes that bill violates the Constitution or that bill is not in the best interest of “we the people,” he can veto that bill. If the President vetoes that bill and enough members of Congress vote in support of that bill, Congress can override the Presidential Veto. If Congress passes a bill and the President signs that bill into law, the Supreme Court can look at the law and find that law to be unconstitutional. Each branch of government can check the power of the other. If the Supreme Court, or any court, for that matter, becomes “too big for its britches,” Congress and the President can limit the jurisdiction of the court.
Justice Scalia believed this form of government made America great. Why? Because it created a system of gridlock. In order for a bill to pass, it would have to get through the House of Representatives and the Senate, withstand a presidential veto, and review by the Supreme Court. This process forces a number of people from different backgrounds to sign off on a bill before it becomes law and binding upon the American people. There is a give-and-take that forces power to be shared.
In Scalia’s view, the moment power becomes centralized in any branch of government, the guarantees of the Bill of Rights become parchment guarantees. In other words, these guarantees are written on paper, but never enforced. Justice Scalia believed that each branch of government has a fiduciary responsibility to protect the individual rights of citizens from encroachments by the other branches of government. A divided government creates a paradox where the government is both sovereign and servant at the same time.
Ironically, Justice Scalia’s testimony before the Senate and his judicial opinions are diametrically opposed to each other when it comes to protecting the free exercise of religion. In a decision made prior to his Senate testimony, Justice Scalia abdicated his judicial responsibility in the worst way, and left protections under the First Amendment Free Exercise Clause to the whims of the majority. This is a strong charge, but the facts bear them out.
In the case of Employment Division v. Smith, two Native American employees were terminated from their jobs as counselors in a drug treatment facility for testing positive for peyote, a drug they ingested for sacramental purposes at a ceremony for the Native American Church. Peyote was considered a controlled substance and use or possession was a Class B felony in the state of Oregon.
When the terminated employees applied for unemployment benefits from the state, they were denied these benefits because they were terminated for work-related misconduct. The question before the Supreme Court was whether the decision of the state to deny unemployment benefits to the employees, who were terminated for engaging in religious practices that violated state law, infringed upon their free exercise rights under the First Amendment to the Constitution. In his decision, Justice Scalia affirmed some important protections that we enjoy under the free exercise clause of the First Amendment: “the government may not compel affirmation of religious belief; punish the expression of religious doctrines it believes to be false; or impose special disabilities on the basis of religious views or religious status.”
After reviewing the facts of the case, Justice Scalia concluded that the First Amendment does not allow a citizen to hide behind religious practices to violate the criminal law. He was probably right. But in arriving at this conclusion Justice Scalia did the unthinkable. He removed the Supreme Court and all lower courts from the duty to provide a heightened or intense review of the actions of the legislative and executive branches in passing laws that impact religious freedom.
In Scalia’s view, as long as there is a reasonable explanation for a legislative enactment and there is no evidence that the legislature or executive branches expressed personal animus toward religion while enacting a particular law, the court will defer to their collective wisdom. In essence, Justice Scalia limited the instances where the court will engage in its constitutional function as the final check on the powers of the legislative and executive branches of government.
In most instances, on the state and federal levels, the judiciary is the only branch of government free from the influence of popular political positions. Quite often, judges, particularly those who sit on the supreme courts at both the state and federal levels, have lifetime appointments and can ignore political polls when they make their decisions. For this reason, the courts are often considered the protector of the minority point of view. Justice Scalia’s Smith decision leaves the exercise of religion to the whims of the majority without serious judicial review.
It is highly improbable that any legislative body would pass legislation restricting a sacramental practice of the Roman Catholic or Baptist churches. However, the majority of citizens, acting through their legislators, would think nothing of restricting the freedoms of a Muslim to practice their faith according to the dictates of conscience. It is the role of the judiciary to protect that faith under our system of checks and balances. Because of the Smith decision, a religious minority, or a disfavored group of religious adherents, no longer has the judicial branch as the last firewall against the excesses of the majority.
The Smith decision reveals a flaw, a weakness in our system that could ultimately threaten our constitutionally protected freedoms. The separation of powers is no match for a centralization of power when a branch of government abdicates its constitutional mandate. As human beings, we often act to protect our self-interest or that of our communities. The separation of powers prevents the collusion of power that undermines a republican democracy.
If enough Republicans get together, they will not respect the rights of Democrats. If enough Democrats get together, they will not respect the rights of Republicans. If enough whites collude together, they can rig the system to disenfranchise blacks. Enough men, thinking alike, can deny women equality under the law. If Christians unite, they can exclude other religious believers from the public square.
Ultimately, if America is to become truly great, she will need to reaffirm her founding principles of separation of powers. In addition, she will need to consistently act in the best interest of those whose views and practices do not reflect the conclusions of the majority of her citizens. There are multiple examples in our history in which we have failed to act on behalf of those who are not like us. When this occurs, in the words of Justice Scalia, our rights become parchment rights, words on a written document with no real power.