In 1990, Justice Scalia, a conservative member of the Supreme Court, authored a decision in Employment Division v. Smith, a case considering whether the state of Oregon could deny unemployment benefits to two Native American men for their the use of peyote (a cactus with psychoactive properties when ingested), whose use and possession is illegal in the state, in the Native American Church.
With his ruling, Mr. Scalia rejected past Court precedent that provided stronger protection for the right of religious conscience – precedent that had served our nation well. Largely ignoring the track record under the old rule, his opinion stated that to exempt the men from penalties for their religious use of peyote would “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.”
Scalia essentially enunciated a new rule that permits the federal government to violate religious conscience so long as it does so with a general law that is not directly intended to discriminate against religious exercise. In that single act, the Court reduced religious conscience from a right to a mere privilege.
The response to Scalia’s opinion was dramatic. Congress, overwhelmingly and with strong support from President Clinton, passed the Religious Freedom Restoration Act of 1994, restoring a robust right of conscience. Unfortunately, in City of Boerne v. Flores, decided in 1997, the Court held that Congress had exceeded it powers, effectively leaving Obama free to disregard religious conscience in his health care initiative.