Is the Court doing away with civil liberties?

IS THE COURT TRYING TO DO AWAY WITH THE BILL OF RIGHTS?

In Employment Div V Smith (1990) the Supreme Court’s decision could be a threat to the Bill of Rights. First Amendment reads, “Congress shall make no law respecting an establishment of religion,or prohibiting the free exercise there of”. In 1963, Sherbert V Verner,the Court ruled that the free exercise clause did compel an exemption unless the state could advance a “compelling reason>” not to.


In Employment Div V Smith” this rule was overturned, Justice Scalia replaced it as follows, The free exercise does not require the state to accommodate a claim of free exercise”,unless the rule purposefully imposes on religion. Justice Scalia argued, “To make an individuals obligation to obey a law contingent upon the law’s coincidence with his religious beliefs except where the state’s interest is compelling” contradicts constitutional tradition and common sense. Judge Scalia noted that although religious beliefs are absolutely immune from gov’t interference. Religiously motivated conduct is not. Therefore EVEN THOUGH THE
LAW MIGHT ‘INCIDENTALLY” RESTRICT A RELIGIOUS PRACTICE IT DOES NOT RELIEVE A PERSON FROM OBEYING A VALID AND NEUTRAL LAW.

Critics argued that the rule fundamentally undercuts the whole idea of the free exercise clause. Justice O’Conner wrote,” A person who is barred from engaging in religious motivated conduct is barred from freely exercising his religion.” Justice Scalia suggested going to the legislature for a remedy.

However the possibility of small groups influencing the legislature to pass legislation is very small. The Bill of Rights was supposed to protect small groups and individuals against, “The tyranny of the majority”.

The danger is that every legislative session the legislature could change the Bill of Rightsby passing a law that does not name any group but would in practicality restrict or prevent certain activities. Net result—no bill of rights.