Master of Jurisprudence in Indian Law - University of Tulsa College of Law
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Scalia's ruling in Native religious case debated

In a rare debate in the nation's capitol, U.S. Supreme Court Justice Antonin Scalia explained why he ruled against the religious rights of Native Americans.

Scalia wrote the majority opinion in Employment Division v. Smith, a case decided in 1990. The decision allowed the state of Oregon to deny unemployment compensation to two Native Americans who were fired for failing a drug test after using peyote.

"Two defendants in the case were drug counselors and it was discovered that they were going off in the mountains every week to smoke peyote," Scalia recalled on Sunday during a debate with the president of the American Civil Liberties Union.

The closely-divided case prompted an outcry among tribal leaders and the religious community at large. It led Congress to pass the Religious Freedom Restoration Act to ensure members of the Native American Church could use peyote -- a hallucinogenic -- as a sacrament without punishment.

"My view is that your opinion in the Smith case gutted the free exercise of religion," ACLU President Nadine Strossen told the justice during the debate.

But to Scalia, the case wasn't really about religion. Court precedents, at the time, gave citizens overly broad license to challenge any statute by arguing that it burdens their religious beliefs, he said.

"The prior law that had been adopted [by the Supreme Court] was that when any general law impinges on a person's religious beliefs, the state has to demonstrate a compelling state interest," Scalia said.

That kind of thinking goes against the U.S. Constitution, Scalia said. So his majority opinion limited the ability of citizens to challenge general laws on religious grounds.

"If you want to get an exemption from a general law because of your religious beliefs, you have to ask the majority to give you that exemption, which in this country will easily be done," Scalia said in defense of the ruling. "We are a tolerant people, especially on matters of religion."

Scalia's reasoning fits in line with characterizations of him as a conservative judge who believes the public, not the courts, should decide matters like abortion rights or same-sex marriage. Scalia was appointed to the bench by the late president Ronald Reagan, a Republican.

But he disputed the notion that he is a "strict constructionist," a term applied to judges who base decisions on the actual words and phrases used in law rather than looking to other sources. "Some people call me that," he said. "I'm not that. You should interpret the Constitution reasonably."

Regardless of the characterizations, Scalia almost always comes down against tribal interests in Indian law cases. The highly charged language he sometimes uses has drawn particular criticism in Indian Country.

"State sovereignty does not end at a reservation's border," he wrote in a 2001 decision.

During oral arguments for a case in 2003, he said "I had thought that we -- that our cases make very clear that [tribal] sovereignty is a peculiar and lesser kind of sovereignty."

Scalia has had less of an impact on tribal matters due to the fewer number of Indian law cases accepted by the Supreme Court. Only one case in the last two years has brought defeat to Indian interests.

But the recent changes on the court have some in Indian Country concerned about future cases. The death of former Chief Justice William H. Rehnquist and the retirement of Justice Sandra Day O'Connor has brought two unknowns to the bench.

"We don't know right now where the majority of the court is," said Kevin Gover, the former head of the Bureau of Indian Affairs, at the recent National Congress of American Indians annual conference.

Scalia himself warned that shifts in the court could result in significant changes in the law. "Someday, you're going to get a very conservative Supreme Court and you're going to regret what you've done," he told the ACLU president during the debate.

Watch Debate:
Justice Scalia and ACLU (October 15, 2006)

Employment Division v. Smith:
Case Resources | Court Opinion