With that in mind, it will be entertaining to see how Justice Antonin Scalia plays this one out. On one hand, it's hard to imagine a scenario in which Hobby Lobby wins without Scalia in its corner. On the other hand, Scalia did write the majority opinion in the important 1990 case Employment Division vs. Smith, ruling against a couple of guys in Oregon who sought exemption from a particular application of drug laws on religious grounds after ingesting peyote as a sacramental ritual at their Native American Church. In Hobby Lobby, one of the issues the court will ponder is whether the contraception requirement, which as a regulation has no religious character or intent, substantially burdens religious exercise to an extent that would justify letting some evade the law.
So what does Scalia think about situations in which public policy created through a democratic process collides with individual claims to a right to religious free exercise? It is instructive to read some of the things he had to say in 1990 in the Oregon case:
"The government's ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, cannot depend on measuring the effects of a governmental action on a religious objector's spiritual development."
"Respondents urge us to hold, quite simply, that when otherwise prohibitable conduct is accompanied by religious convictions, not only the convictions but the conduct itself must be free from governmental regulation. We have never held that, and decline to do so now."
"Our cases do not at their farthest reach support the proposition that a stance of conscientious opposition relieves an objector from any colliding duty fixed by a democratic government."
"It is horrible to contemplate that federal judges will regularly balance against the importance of general laws the significance of religious practice."
Quoting with approval a 19th century case: "'Laws...are made for the government of actions, and while they cannot interfere with mere religious belief and opinions, they may with practices...Can a man excuse his practices to the contrary because of his religious belief? 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.'"
Which Scalia will show up today for Sebelius v. Hobby Lobby? The one from 1990 who understood the proper balance between democratic government and religious freedom? Or the twenty-first century version who just seems to make it up as he goes to suit his ideological whims?
A version of this post also appears at BruceBarry.net.