By Aaron Blumer
Dec
05
2018
"James Phillips and John Yoo continue to maintain that Justice Antonin Scalia got the Constitution wrong on religious liberty — and that I am in error, too, in defending the late justice’s bottom-line conclusion." - National Review
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What the debate is about
According to the author, Ramesh Ponnuru, Scalia’s 1990 opinion in Employment Division v. Smith argued that prior to the 1960's the Supreme Court never granted religious groups exemptions to specific laws. Ponnuru sides with his understanding of Scalia's argument.
I'm not familiar with Scalia's reasoning in the case, but Ponnuru doesn't make much of a case. In the article linked above, he basically backs down, while acting like he hasn't.
But his thesis wasn't merely that we should be skeptical. It was that SCOTUS should not grant exemptions, because this is probably not the original intent of the First Amendment.
And his case for that is pretty weak, mainly on two grounds:
Ponnuru does concede this though...
Personally, I don't know why that isn't obvious. Motivation has nothing to do with whether a Constitutional principle is being effectively violated or not.
Views expressed are always my own and not my employer's, my church's, my family's, my neighbors', or my pets'. The house plants have authorized me to speak for them, however, and they always agree with me.
Not quite sure...
The courts may not have been deciding for religious minorities, but Quakers had been receiving (mostly) exemptions from military service all the way back to the Founding. I think the principle was understood, and this is an error of Scalia's, along with his opinion in Kelo.
Aspiring to be a stick in the mud.