Scalia, “Billy” Brennan’s Mistakes, and Mormon Bigamy
Posted by Wade on September 1st, 2006
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!
This was interesting. Thanks for writing it up.
Comment # 1 left by mullingandmusing (m&m) on September 1st, 2006
I’m glad you liked it. And you’re quite welcome.
Comment # 2 left by Wade on September 1st, 2006
Very good. I actually read Scalia’s ‘A Metter of Interpretation’ pnce upon a tme. (I think the title is right). I believe he is my favorite SCJ as well.
Comment # 3 left by Eric Nielson on September 1st, 2006
I wonder if you’d consider laws restricting religious behavoiur “proper” if they were extended to the ordinances in the Temple? Oh wait, they already were. The comparison of polygamy and homicide is a farce and the actions taken by the courts in the 18oo’s to destroy it were unconstitutional no matter what standard you held it to. There was a religious test for voting eligibility; wives were compelled to testify against their husbands; women were given the vote and then when they didn’t vote the way the anti-Mormons in D.C. wanted them to, it was taken away again. The last may or may not be legally unconstitutional but it is surely against the spirit of the constitution to allow people to vote only when they vote they way you want them to.
Comment # 4 left by Proud Daughter of Eve on September 1st, 2006
I wonder if you’d consider laws restricting religious behavoiur “proper†if they were extended to the ordinances in the Temple?
I understand your concern. However, as I stated in the post, if a law is “targeted” at religious practice, it does violate the free-exercise clause. So any law restricting ordinances in the temple, or as you suggest, laws applying a religious test, would emphatically be struck down.
As for the bigamy statute, it was not targeted at only the Mormons; it was a generlly applicable law. Whether you like the law or not is not the Supreme Court’s fault! Indeed, that is what the political process is for. The Supreme Court doesn’t make the law, they only interpret it. And I side with Justice Scalia on this issue because broadening the free-exercise clause would make people laws unto themselves. If I want to spit in the street, I can if I say God tells me to do it. If I want to shoot up heroin every third day in public, I can if God tells me to do it.
I can’t imagine a law of general applicability that would ban temple ordinances–there would have to be far too many exceptions for other groups and activities. And if there are exceptions in a law, it is a sure-fire sign that the law is aimed at religious practice! In fact, a statute that banned the butchering of animals as part of religious practices was struck down by the Supreme Court because there were exceptions to kosher practices etc. It was clear that the law was aimed at the santaria religion.
As for you fears about voting, that it is another issue I didn’t bring up. And I agree with you that the tests applied to the saints was wrong.
Comment # 5 left by Wade on September 1st, 2006
Eric:
Yes, I’ve read that book twice; it’s a good read.
Comment # 6 left by Wade on September 1st, 2006
That IS an ugly head… -
Comment # 7 left by Okie on September 1st, 2006
Thanks Okie.
Comment # 8 left by Wade on September 1st, 2006
I wasn’t thinking of laws applied directly to temple ordiances– though I’d like to think public outcry and common decency would have them struck down even a cursory glance at the history of the Utah Territory shows that’s a hope so vain as to be laughable– I was thinking of a law created where an interpretation thereof would affect temple ordiances. I can think of a couple possibilities off the top of my head, though those of you with more legal experience than I could probably point out why no one would make a law like that. On the other hand, I just finished reading “The Kingdom or Nothing: the Life of John W. Taylor, Militant Mormon” and the things detailed in there show clearly how a hollow, horrible mockery can be legally made of our legal system.
Comment # 9 left by Proud Daughter of Eve on September 1st, 2006
I saw a version of this in France recently where religious symbols were banned for being worn, in an effort to make everyone “comfortable” with Muslim women and their headresses. At the time I just groaned and thought, “I’m glad I live in a country that values religious expression more than that.”
And yet, by your logic, that very law could well be coming and would be totally constitutional by that logic. Differentiating between religious acts and beliefs makes no sense. It is an artificial construct and I highly doubt that a ban on religious symbols was what the founders had in mind when they drafted the Constitution to carefully protect religious freedom.
Brennan’s idea makes more sense to me. Both seem to require reading something into or out of (by creation of a false dichotomy) the Constitution. I’m with you Eve, I think the nineteenth century gutted religious freedom to a large extent in this country and was a disgrace to the founding fathers.
Comment # 10 left by Doc on September 1st, 2006
And yet, by your logic, that very law could well be coming and would be totally constitutional by that logic.
Obviously you didn’t understand the post or my comment to PDOE. The Supreme Court HAS struck down laws aiming at, or targeted at, religious practices or exercises. Your worry about laws restricting religious symbols actually has nothing to do with the free exercise clause, you’re talking about free speech. That is a whole different story. So, you’re wrong, a law aimed at religious practices (if that has to do with your wearing of symbols) would be struck down under current Supreme Court precedent.
Differentiating between religious acts and beliefs makes no sense.
It’s okay that it doesn’t make sense to you. But you should consider the issue of people becoming laws unto themselves by claiming it is their religion. By your favored standard, people would become such!
Comment # 11 left by Wade on September 1st, 2006
I should correct myself: free exercise and free speech actually are intertwined sometimes and they do have something to do with each other. But the purpose of this post was to address strictly free exercise.
Comment # 12 left by Wade on September 1st, 2006
Thanks for the explanation (and all the little details that made it understandable to a non-lawyer).
I can’t remember the correct terms for two opposing views of how to interpret the Constitution—what the authors actually wrote (literal? is that the term?) versus what they intended (original intent). I tend to agree with you and Scalia that original intent is what matters, because as he says it makes the Constitution into a standard, but I have two misgivings:
1) It doesn’t seem very exact to try guessing/interpreting what the framers intended by their words. How can you really know what they intended, short of reading their own words.
2) Why should we care what the framers wanted?
How do you reconcile these?
I thought of this verse in Alma, regarding laws against conduct instead of religious belief.
Comment # 13 left by BrianJ on September 1st, 2006
Brian:
Great questions. Because I’m at work, I won’t be able to address them sufficiently for a while. But I will in time.
Comment # 14 left by Wade on September 1st, 2006
Brian:
There are many different terms for referring to how one should/could interpret the Constitution and statutes etc. Some are: strict constructionism, originalism, interpretivism, non-interpretivism, and so on.
It doesn’t seem very exact to try guessing/interpreting what the framers intended by their words. How can you really know what they intended, short of reading their own words.
You’re right, at times it isn’t an exact science. This is why justices should rely on general and specific traditions in the law and use analogy to other principles we know the founders believed in when decifering what they intended for certain issues. Those interpreting the Constitution should also understand it structurally. It may not be a perfect system, but it’s much better than being subject to the arbitrary will of 5 robed tyrants.
Why should we care what the framers wanted?
Because James Madison, Thomas Jefferson, John Adams, and others were some of the greatest political (governmental) thinkers of all time. They were very widely read and understood how to set up a system to best suit a people. The main reason we should care is because the framers understood that concentrations of power in any governmental body leads to despotism and overall unhappiness of people. They set things up to avoid this at all costs.
Comment # 15 left by Wade on September 1st, 2006
Wade,
Your answer to Misgiving #1 was very helpful.
Your answer to Misgiving #2 didn’t really address my question (my fault, not yours, because I didn’t really explain my question). First, you don’t have to convince me that Madison, et al were brilliant. I don’t doubt them or the system they set up.
My questions are when the debate is over something that:
a) most likely didn’t cross their minds (eg. abortion, internet)—and you give a helpful framework for dealing with this in your response to Misgiving #1.
b) reflects the values of society where those values have changed (eg. women’s suffrage). This is Misgiving #2. Suppose some of the men intended the country to be run by men; others wanted slavery to persist; etc. Why should we, who have different values, care what they wanted?
Comment # 16 left by BrianJ on September 1st, 2006
“2. Suppose some of the men intended the country to be run by men; others wanted slavery to persist; etc. Why should we, who have different values, care what they wanted?”
Because there are ways around that having nothing to do with the Supreme Court. Its called a Constitutional Amendment that makes sure that the people’s values really have changed. As it is now, it seems, the Supreme Court is doing what the Constitution itself left to the people to decide. Otherwise, there really are nothing more than 9 Kings making laws at a whim.
Comment # 17 left by Jettboy on September 1st, 2006
Brian:
Jettboy beat me to it! He’s exactly right; I was going to mention the amendment process. This is what I meant about judges understanding the “structure” of the Constitution. Many modern judges see themselves as law makers instead of interpreters. If they understood their proper role then change would come from the people through the intended process, i.e., the legislative and amendment processes.
Nice job explaining it Jettboy. And good question Brian.
Comment # 18 left by Wade on September 2nd, 2006
A lot of these questions would become moot, and the modern Supreme Court would look more like usurpers, if people would actually read the Constitution. Most seem to have only seen quotes from news blurbs and pundits. We’ve all used and abused the 1st amendment and have at least heard of the 5th amendment in cop shows. Yet, there is something like ten sections before that and 27 (?) amendments besides.
It is true that often it reads like the legal document it’s meant to be. Perhaps someone could write a “modern English” version that simplifies the language. That might be a start to help the U.S. return to the Constitutional and Representative (not Royal or Democratic) government the founders intended.
Comment # 19 left by Jettboy on September 2nd, 2006
Jettboy:
You’re right about people not reading the Constitution. But I disagree with rewriting it into “modern” language because it would be impossible to do that without subjectively changing its meaning. Also, it’s not hard to read anyway; the problem is people just don’t read it at all. When I was in my Constitutional Law course last year, the vast majority of the class had never read the Constitution. It’s a major problem because people don’t understand what’s being taken away from them.
And yes, there are 7 Articles, many with several subsections, preceding everything people are used to hearing (”right to remain silent” etc.).
Comment # 20 left by Wade on September 2nd, 2006
Jettboy (and Wade, though late),
Your answers are very helpful. In order to see if I understand, let me put it in my words: There are times when the Supreme Court, if acting appropriately, will make a decision that clearly and knowingly does not reflect the will of the people, but rather the will of deceased americans. In this sense, they are knowingly making the wrong decision but for the right reason (and ultimately, because it would uphold the law, it would still be the right decision).
Perhaps that is just theoretical, but maybe you know of cases where justices have admitted to this?
Comment # 21 left by BrianJ on September 2nd, 2006
and ultimately, because it would uphold the law, it would still be the right decision
Exactly right; now that you understand that, you understand the role of the judiciary better than most people. Indeed, you know their role better than many of them (judges).
Perhaps that is just theoretical, but maybe you know of cases where justices have admitted to this?
Yes; in fact Justice Scalia addresses this in Oregon v. Smith. In talking about people’s concerns for the minorities who wish to smoke peyote in their religious practices, Scalia said that states are free to make exceptions to their laws restricting drug use (exceptions for religious minorities). In fact, after this case, Oregon did just that: it democratically made an exception to its laws for native american’s wishing to smoke peyote for religious purposes. Scalia said the following:
It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs.
Also, George Washington had this to say about the judiciary adhering to the original meaning of the Constitution:
If in the opinion of the people the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this in one instance may be the instrument of good, it is the customary weapon by which free governments are destroyed. The precedent must always greatly overbalance in permanent evil any partial or transient benefit which the use can at any time yield. –George Washington, Farewell Address (1796).
Also, I think there is a very applicable statement from one of the dissenting justices who dissented in the Dred Scott case (the case that was one of the main causes of the Civil War). Scott was a slave held in Missouri who sued for his freedom when his original owner died. The Supreme Court of Missouri denied his freedom. The case went to the U.S. Supreme Court and the Court held in favor of all slave holders by declaring that “negroes” could never become citizens of the U.S. Dissenting from this decision was Justice Curtis who said:
Political reasons have not the requisite certainty to afford juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under a government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of that it ought to mean. Dred Scott v.Sanford, 19 How. 393, 620 (1857) (Curtis, J., dissenting).
Comment # 22 left by Wade on September 2nd, 2006
Wade,
Thanks!
Comment # 23 left by BrianJ on September 3rd, 2006