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In safe hands

"In safe hands" Continued...

Issue: "Katrina: Week 2," Sept. 17, 2005

In a concurring opinion, Mr. Rehnquist and Justices Scalia and Thomas also contended the Florida high court had usurped the state legislature's constitutional authority to determine the rules for conducting elections.

The Rehnquist legacy will be known for its opinions favoring a strict interpretation of constitutional standards, less federal intrusion in state government, and greater flexibility in matters of religion.

Said Kevin Hasson, head of the conservative Becket Fund for Religious Liberty: "Farewell to a man of principle. The Beckett Fund sometimes disagreed with him about what the Constitution meant, but we never doubted it was in safe hands."

Cleanup project

For all the positive aspects of Chief Justice William Rehnquist's legacy, some religious liberty advocates point to a drawback: He cleaned up the First Amendment's Free Exercise Clause.

This is a drawback, says Kevin Hasson of the Becket Fund for Religious Liberty, because the Free Exercise Clause is "a constitutional provision that is designed to be untidy."

The late jurist often did not see it that way, and religious freedom advocates will be watching for fewer housekeeping habits from Chief Justice-designate John Roberts.

As both an associate justice and then as chief justice, said Mr. Hasson, "Rehnquist always wanted to read the Free Exercise Clause narrowly." The result was that he often sided with the government against religious minorities. A couple of prominent examples:

  • In Thomas v. Review Board, then-Associate Justice Rehnquist dissented from a majority opinion that granted unemployment benefits to a Jehovah's Witness. The man had quit a company because it transferred him to a department that produced turrets for military tanks. The man said his religious beliefs kept him from working to produce weapons, but Indiana authorities (and Mr. Rehnquist) said leaving a job for that reason did not qualify him for benefits.
  • In Employment Division v. Smith, Mr. Rehnquist and four other justices ruled that Oregon's drug laws could include banning the religious use of peyote by Native American Indians. Neutral laws that end up restricting the free exercise of religion, they held, require no special "compelling interest" to be constitutional.

Both cases involved small religious minorities whose beliefs and practices were disdained by the majority. Neither case may seem revolutionary, but advocates of religious liberty say their consequences could be large. For example, before Smith, argues Mr. Hasson, it would have been both unconstitutional and dumb for a dry county to outlaw the serving of communion wine to minors. "Now it would just be dumb," he said.

The common thread in these and many other cases was Mr. Rehnquist's belief that the Free Exercise Clause merely prevented the government from singling out a particular religion for attack. But if a routine function of government-unemployment compensation rules in Indiana, drug laws in Oregon-collided with a citizen's religious conscience, then conscience would lose. This may make society seem tidier, but when it came to the free exercise of religion, the Constitution's framers thought a bit of a mess was in order. -Timothy Lamer

Edward E. Plowman
Edward E. Plowman

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