Scalia, Billy Brennan's Mistakes, & Mormon Bigamy

On Monday I had the extrememly rare privilege of sitting in the same room as a U.S. Supreme Court Justice. Associate Justice Antonin Scalia was in San Diego this week to pay a visit to the University of San Diego School of Law. Fortunately, a professor from Thomas Jefferson was able to pull some strings and get him to speak to a couple hundred of our students too. He was speaking to second-year Con-Law students. I was lucky enough to get in even though I’m in my third year because the law review was given a few seats. In fact, you can see the back of my ugly head in this picture taken while I was seated waiting for the lecture to begin (blue shirt, bottom right). You can also read comments about his visit on Thomas Jefferson’s web site.

It was a great experience! Not only did we get to hear from a Supreme Court Justice, but it just so happened to be one of my heroes! Ever since my undergraduate course in constitutional law, I have deeply admired Scalia’s judicial philosophy and theory of interpretation.

Indeed, I agree with him that the only legitimate way of understanding what the Constitution means today is to “look at what it meant to the founders, otherwise, you have no standard.” Those who believe in an elastic or evolving Constitution actually don’t believe in any Constitution; they believe in the tyranny of 5–whether they know it or not! It’s true. If there is no original standard, then the Constitution means whatever the majority of the Court says it means (and this changes with the composition of the Court–hence the fierce battles over nominations even in District and Circuit courts now). Incidentally, it’s not just what the Constitution means, it’s what any law means; this is because one of the greatest axioms in the law, enunciated by Chief Justice John Marshall, is the following:

It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule. If two laws conflict with each other, the courts must decide on the operation of each.

So if a law be in opposition to the constitution; if both the law and the constitution apply to a particular case, so that the court must either decide that case conformably to the law, disregarding the constitution; or conformably to the constitution, disregarding the law; the court must determine which of these conflicting rules governs the case. This is of the very essence of judicial duty. (Marbury v. Madison)

Simply put, we are either governed by laws or men. The only way to be a government of laws is to have a standard for what those laws mean; without a standard, it is men who govern. When men govern, tyranny is virtually always the result.

Needless to say, I highly enjoyed the Justice’s lecture. I found it quite interesting how humorous he is–I would never have guessed he was so funny. He wouldn’t go a full stream of thought without making everyone laugh.

But what I found most interesting is he opened his lecture up to questions. He typically doesn’t do this because of the disrespectful ways he is treated by many of those who disagree with him. Previously, I posted on this total lack of civility. Yet, he was gracious enough to give TJSL students a shot.

All of the questions were appropriate, and most of them were quite good. One in particular was great; it caught the Justice completely off guard: “Out of all the opinions you’ve written, which are you most proud of?” He thought about it for quite a while, and then said, “Oregon v. Smith“. After giving the brief facts of the case, he began discussing the “free-exercise clause” of the 1st Amendment, and religious freedom in general (he was speaking primarily to new con-law students). Then he started talking about Mormons in the 19th century who practiced bigamy. Next, he berated a former Justice for his erroneous prior oppinions in the context of the free-exercise clause: Justice William Brennan (Scalia calls him “Billy” Brennan). He then brought it full circle and said why he is so proud of Oregon V. Smith.

In Smith, two Native Americans were fired from their jobs at a drug rehab center after it was revealed they were injesting peyote as part of their religious ceremonies (peyote is a hallucinogen). The two men then filed for unemployment benefits from the state. Their requests were denied because the reason for their termination was considered “misconduct”–peyote was a controlled substance in Oregon. They sued claiming a violation of the Free Exercise Clause. They claimed it was unconstitutional for the state to punish them under the law because peyote use was part of their religion; and the 1st Amendment protects free exercise of religion. Their argument relied wholly upon a rule (or what is more accurately known as a test) that Justice Scalia says was “made up by Billy Brennan”.

In 1963, Justice Brennan departed from nearly 100 years of precedent to make up the rule. In short, Brennan said states can only infringe on religiously motivated conduct if the state proves it has a “compelling interest” in doing so. (See Sherbert v. Verner). Compelling Interest is a term of art meaning the state will almost always fail (a high burden of proof).

The precedent Brennan departed from involved Mormon polygamy: Reynolds v. United States. In the late 1870s, George Reynolds was convicted under an anti-bigamy statute. In his defense, he claimed his religion required him to practice polygamy and that the law infringed on the free exercise of his religion. The argument failed; and properly so. The Court drew a distinction between religious belief or opinion, and religious action or conduct. The Court drew an analogy to religion requiring human sacrifice and said:

To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and in effect to permit every citizen to become a law unto himself.

Thus, the Free Exercise Clause protects religious beliefs and opinions, and not action. Indeed, the Clause only protects religious action or conduct if the statute is specifically targeting the religious practice. Billy Brennan errouneously disregarded this precedent.
However, Scalia restored the true meaning of “Free Exercise” in Smith. The case eventually made its way to the U.S. Supreme Court after the state appellate and supreme courts held in favor of the two men. But the High Court ruled against them and reversed the Oregon courts. Writing for the majority, Justice Scalia said the following:

To make an individual’s obligation to obey. . .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.

So there you have it, when Justices decide they know better than the original meaning of the Constitution, mistakes are made. Justice Brennan was the polar opposite of Justice Scalia. The main difference is Scalia understands that there must be a standard or we become laws unto ourselves (the Justices particularly). Originalism is the proper standard!