November 17 1997

ARTICLE TOOLS

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A Supreme Court justice said recently, "If the people want abortion, the state should permit abortion in a democracy." Sound like one of the liberal justices? Not so: It was the conservative jurist Antonin Scalia.

Many Christians haven't noticed, but the idea that civil law should be based on a moral law is losing ground on both sides of the ideological divide.

Scalia's remarks were made in an unpublished speech at Gregorian University where he argued that moral law has no place in formulating court opinions. In a democracy the majority rules, Scalia said—"and the minority loses, except to the extent that the majority … has agreed to accord the minority rights."

This is conservative legal theory? Hardly. It's pure majoritarianism. Scalia believes in a higher law, a natural law; but he insists that the people must write morality into the civil law through the legislature. Judges merely interpret the text—without consulting morality, tradition, or even legislative intent.

Scalia's literalist legal philosophy is no purely academic matter. Its effects have been painfully concrete—helping to erase a Christian voice in law and policy. The turning point was a 1990 case, Smith v. Employment Division, which held that an Oregon drug law banning the sacramental use of peyote did not violate the First Amendment free-exercise rights of Native Americans. To achieve that, Scalia, writing for a 5-to-4 majority, gutted the standard used historically to protect religious freedom.

Congress rallied by passing the Religious Freedom Restoration Act (RFRA) restoring the traditional standard. But last summer, in Flores v. Boerne, the Court struck down RFRA. And so, ironically, Scalia, the majoritarian, precipitated a Court decision ...