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Kagan Throws Scalia's Own Religious Liberty Arguments Back In His Face

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AP

"Your understanding of this law, your interpretation of it, would essentially subject the entire U.S. Code to the highest test in constitutional law, to a compelling interest standard," she told Paul Clement, the lawyer arguing against the mandate for Hobby Lobby and Conestoga Wood. "So another employer comes in and that employer says, I have a religious objection to sex discrimination laws; and then another employer comes in, I have a religious objection to minimum wage laws; and then another, family leave; and then another, child labor laws. And all of that is subject to the exact same test which you say is this unbelievably high test, the compelling interest standard with the least restrictive alternative."

Kagan's remarks might sound familiar to the legally-trained ear. In a 1990 majority opinion in Employment Division v. Smith, Scalia alluded to the same examples of what might happen if religious entities are permitted to claim exemptions from generally applicable laws. He warned that "[a]ny society adopting such a system would be courting anarchy."

"The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind," Scalia wrote in the 6-3 opinion, "ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races."

Indeed, Clement picked up on the reference.

"If you look at that parade of horribles -- Social Security, minimum wage, discrimination laws, compelled vaccination -- every item on that list was included in Justice Scalia's opinion for the Court in Smith," he said.

Kagan also echoed Scalia's argument in Smith that judges are not qualified to evaluate the "centrality" of beliefs to a faith, or the "validity" of interpretations brought forth by individuals seeking exemptions from the law.

"You cannot test the centrality of a belief to a religion, you cannot test the sincerity of religion," she said. "I think a court would be, you know -- their hands would be bound when faced with all these challenges if your standard applies."

The case in Smith was brought by two men who lost their jobs for using peyote, which they said was part of a Native American ritual, and were subsequently denied unemployment benefits by Oregon.

If Scalia had the final word, the owners of Hobby Lobby and Conestoga Wood probably wouldn't have had much of a case against the birth control rule. But Congress responded to Scalia's opinion by passing the Religious Freedom Restoration Act in 1993, which sets strict scrutiny standards for any law that substantially burdens a person's exercise of religion. That's the law that endangers the contraceptive mandate -- and it's the basis under which Scalia appeared to lean against the government's position during Tuesday's oral arguments.

About The Author

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Sahil Kapur is TPM's senior congressional reporter and Supreme Court correspondent. His articles have been published in the Huffington Post, The Guardian and The New Republic. Email him at sahil@talkingpointsmemo.com and follow him on Twitter at @sahilkapur.