Church, state and peyote.

FROM the sacramental use of peyote in Oregon one would not expect a revolution in constitutional law, but that is what appears to have happened. Conservatives are sharply divided by this surprising development. Referring to the decision of the Supreme Court in Employment Division v. Smith, George Will writes, "Scalia's position is not only sound conservatism, it is constitutionally correct: it is the intent of the Founders." William Ball, however, a staunchly conservative champion of limited government who has argued historic cases before the Supreme Court, writes, The Court has used a trivial circumstance as the vehicle for a catastrophic decision." Among the disagreements involved is whether the price of democracy is the prohibition or the protection of behavior that is inconvenient to the majority.

The decision in Employment Division v. Smith was 6 to 3, with Justice Sandra Day O'connor joining in the conclusion but vigorously protesting the rationale set forth in Justice Antonin Scalia's majority opinion. There is no dispute about the "trivial circumstances" of the case. Two Oregon men, both members of the Native American Church, were fired from their jobs and denied unemployment benefits for participating in a sacramental rite that involves ingesting peyote. Unlike 23 other states and the Federal Government, Oregon makes no exception in its drug laws for the religious use of peyote. The men argued that Oregon had violated their First Amendment right to the "free exercise" of religion. (The Religion Clause, extended to the states under the Fourteenth Amendment, reads: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof . . .")

THE STANDARD procedure in such cases, Justice O'Connor convincingly demonstrates, is to balance" the free-exercise claim against the government's interest in enforcing a law. No right is absolute, and that includes rights of speech, assembly, and religious freedom. But it has traditionally been held that these First Amendment rights are "constitutionally preferred." It is up to the state to prove a "compelling government interest" in enforcing a law that restricts them. In other words, the benefit of the doubt is on the side of freedom, and the burden of proof rests with the government to show why it is necessary for freedom to be infringed or denied. In this case, some might agree with Justice O'Connor that there was a compelling government interest in Oregon's banning of peyote.

But Justice Scalia's opinion would remove the test of compelling government interest altogether-at least in relation to freedom of religion. Justice O'Connor rightly notes that the opinion "dramatically departs from well-settled First Amendment jurisprudence." Other constitutional scholars have called the opinion revolutionary." One distinguished law professor and longtime admirer of Scalia says privately that Scalia's reading of prior decisions is "intellectually dishonest" and his conclusion judicially wanton." Whether or not such language is justified, we may well wonder why a conservative Justice would write an opinion that so greatly expands government power, and why four other justices of a generally conservative bent (Rehnquist, White, Kennedy, Stevens) would go along with it.

Scalia construes the twin guarantees of the Religion Clause (or, as others prefer, the Religion Clauses) as narrowly as possible. No establishment" and "free exercise" mean that the state can neither coerce nor prohibit religious belief and profession. That's it. Scalia recognizes that, by this definition, there have not been and are not likely to be any laws that violate the Constitution. As for "free exercise" in the form of conduct, Scalia says that is up to legislatures. They can, if they wish, exempt religious conduct from certain laws, but there is no constitutional requirement that they do so. In a conclusion that is both candid and chilling, Scalia faces up to the majoritarian import of his argument: "It may fairly be said that leaving accommodation [of religious conduct] to the political process will place at a relative disadvantage those religious practices that are not widely engaged in." But that, he says, is the unavoidable consequence of democratic government," and is preferable to the anarchy that would result if people were allowed to claim religious exemption from the laws.

The fear of anarchy, however, is the conventional argument against all freedoms-religious, political, and economic. It is the argument employed from time immemorial to justify expansive state power. As the Founders of this Republic well understood, it matters little whether the rights of individuals and minorities are violated by a monarch or by a majority in the name of democracy. The dissenters in Employment Division v. Smith invoke the words of Justice Robert Jackson: "The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections."

Scalia says that America "cannot afford the luxury" of making exceptions to general laws that may incidentally restrict religious freedom. Our forebears, however, did not view the Bill of Rights as a list of luxuries. The very idea was to protect minority rights and interests from the tyranny of the majority. Admittedly, Scalia's reasoning is not without its attractions. If it became established doctrine, it would neatly extricate the Court from having to make decisions about the merits of religious claims. The Court has not distinguished itself in its rulings on the Religion Clause, issuing over' the years a hodgepodge of decisions that have made maddeningly volatile the meaning of both "free exercise" and no establishment." Since the Court has made such a mess of its interpretation, Scalia's tack is to forget about the Religion Clause. More precisely, he suggests that the Clause is redundant, that religion can be adequately protected by other First Amendment guarantees, such as the guarantees of free speech and assembly.

The inconvenient fact, however, is that the Religion Clause is right there in the text, and that should presumably carry some weight with conservative judges committed to a jurisprudence of "original understanding." Scalia's opinion is strikingly devoid of any argument on the constitutional text and its historical context. In addition, as Justice O'Connor argues, if the Court were to extricate itself from all areas of constitutional law that pose great difficulties, the Court would soon be out of business. Hard cases, she suggests, are what judges are for.

In addition to simplifying the Court's work, there is another apparent attraction in Scalia's reasoning. If in subsequent cases the Court were to treat "no establishment" the way it treats "free exercise" in Smith, new opportunities might be opened for government support for religious schools and other activities. To be sure, that is a jumbo-sized if. The Court has been anything but consistent when it comes to the Religion Clause, and it is doubtful that four other Justices would stick with Scalia in taking his logic all the way. Perhaps Scalia himself is not prepared to do that. But the logic of Smith appears to be clear. If a "free exercise" complaint cannot be upheld against what Scalia calls a "law of general applicability," then it would seem to follow that a "no establishment" complaint is similarly excluded. When religion is no longer a judicially recognized category, it becomes a matter of constitutional indifference whether, for instance, a school receiving government funds is operated for religious purposes. Many Americans might welcome what would be tantamount to erasing "no establishment" from the Constitution. Given the Court's habits of inconsistency, however, we might end up with the worst of two worlds: the constraints of "no establishment" absent the liberties of "free exercise." Trading the erasure of "free exercise" for the erasure of "no establishment" might seem like a good deal, until we consider what it would mean in both practice and theory.

ACCORDING to Scalia, "religion" in the Constitution is confined to belief and profession. The state can do little or nothing about the former, and the latter is protected as free speech. The dissenters in Smith convincingly show, however, that the law has traditionally recognized that "free exercise" also includes conduct. People do things as a consequence of what they believe and profess. If conduct were removed from "free exercise," many laws of general applicability" would leave religion naked in the face of state power. Labor-relations laws would apply to clergy and church workers, including those who take a vow of poverty. State regulations could turn religious schools into clones of public schools. Anti-discrimination laws could make illegal the exclusion of homosexuals, and for that matter atheists, from positions of religious leadership. "Discrimination" that prevents women from being ordained in some churches would be unlawful. It takes little effort to imagine the lawsuits being readied in the wake of Smith.

Alarmist nonsense, Scalia might respond. His argument is that legislatures can make religious exemptions from such general laws. And if a group can't muster a majority in the legislature? Well, that's tough, but it's the price we pay for democracy. More precisely, it's the price they pay for our democracy. This is a curious argument coming from a Roman Catholic Justice. Scalia, with Kennedy, who is also Catholic and who joined in the decision, seems to have forgotten that not so very long ago, in the us-them dichotomy in this country, Catholics were them. Scalia's opinion ignores the fact that the many cases that have been brought to the Court for remedy have been brought precisely because legislatures did not accommodate free exercise. Curious and ominous, too, is Scalia's citing as precedent two cases in which the Court curtailed religious conduct. One involved a person in prison and the other a person in the military. Prison and the military, most of us might think, are not contexts pertinent to defining the constitutional rights of citizens in a free society. Smith smells of the statist fear that freedom might get out of hand.

Scalia says that Smith does not overturn a 1972 decision that is thought to be the high-water mark of "free exercise" jurisprudence. In Yoder v. Wisconsin, the Court upheld the religious objection of Old Order Amish to keeping their children in school until age 16. George Will writes that Scalia's claim that Yoder "is compatible with the principle he now asserts is unconvincing." William Ball argued Yoder before the Court, and on this point he agrees completely with Will. Against Scalia, Ball says that there is no way that Yoder could have been won other than by forcing the state to prove a compelling interest that overrides the religious conviction of Amish parents. In Yoder the government failed to pass that test. In Smith that test has been abolished. The question is whether the Constitution restrains the state from riding roughshod over the religious beliefs and behavior of the citizenry, including the beliefs and behavior of minorities. Until now, the consensus has been that that indeed is the original, and therefore the right, understanding of the First Amendment.

The Scalia logic raises questions that drive to the heart of the American polity. George Will recognizes this, and cheers the challenge posed by Smith. He says the decision accords with the thinking of "Saint Thomas" (Jefferson, not Aquinas) and with "the cool realism and secularism" of the Founders. The goal, says Will, is "the subordination of religion to the political order." Religion," he writes, "is to be perfectly free as long as it is perfectly private-mere belief-but it must bend to the political will (law) as regards conduct." Will's formula fits very nicely "the naked public square," the situation in which religion is rigorously excluded from public life.

THE DECISIVE figure for religious liberty and the First Amendment, however, is not Thomas Jefferson but James Madison. In his famed Memorial and Remonstrance, Madison wrote: "Before any man can be considered as a member of Civil Society, he must be considered as a subject of the Governor of the Universe: And if a member of Civil Society, who enters into any subordinate Association, must always do it with a reservation of his duty to the general authority; much more must every man who becomes a member of any particular Civil Society do it with a saving of his allegiance to the Universal Sovereign." Michael McConnell, a constitutional historian at the University of Chicago, comments on this passage, "The freedom of religion is thus inalienable because it is a duty to God rather than a privilege of the individual. Religious freedom is a recognition not of the dignity of the individual (although that is its effect), but of the division of authority between earthly and spiritual sovereigns."

McConnell observes that the Constitution's free-exercise guarantee represents a new and unprecedented conception of government and its relation to claims of higher truth and authority." The Supreme Court, says McConnell, "errs if it attempts to calm or suppress religious fervor by confining it to the margins of public life." "Even the mighty democratic will of the people," he writes, "is, in principle, subordinate to the commands of God, as heard and understood in the individual conscience. In such a nation, with such a commitment, totalitarian tyranny is a philosophical impossibility." There is a necessary tension between loyalty to God and to country; claims of ultimate right are pitted against the power of the state. "To that conflict," wrote Lord Acton, "we owe the rise of civil liberty."

The public status of the religious claim to a higher duty is the foundation of limited government. In refusing to acknowledge the constitutional status of that claim, Smith lays the theoretical groundwork for a massive expansion of state power, and not only in the sphere of religion. A coalition of religious, academic, and legal leadership, representing a perhaps unprecedented range of ideological leanings, is petitioning the Court to reconsider the decision. One would not have expected questions of such moment to be raised by the ingesting of a little peyote.