Doing Unto Others and the Limits of DemocracyBettina Krause September/October 2023
In 2015, a few months before he died, Supreme Court justice Antonin Scalia spoke to law students at Georgetown University in Washington, D.C. In the question-and-answer period a student asked Scalia whether courts have a responsibility to protect minorities that can’t win rights through the political process.
Scalia’s response was typically blunt. No, he said. Protection of minority rights isn’t up to courts; it needs to be sorted out within the political process.
“You either believe in a democracy or you don’t,” he said.
You can’t say that Scalia wasn’t consistent in his views. More than two decades earlier, his loyalty to this simple idea had dramatically upended decades of strong constitutional protection for America’s religious minorities. In 1990 Scalia wrote the majority opinion in Employment Division v. Smith, a case involving two members of a Native American faith who used an illegal substance—peyote—as part of their traditional religious practices.
Scalia’s reasoning was straightforward. Oregon’s laws relating to illegal drug use applied equally to all citizens of the state. Yes, in this particular situation these laws happened to obstruct religious free exercise, but they didn’t intentionally target religion for disfavored treatment. And so, end of story.
The upshot, according to Scalia, is that if religious minorities require special legal accommodation for their practices, they must seek it from legislatures, not the courts.
Scalia freely acknowledged that religious minorities with “religious practices that are not widely engaged with” will be placed at a “relative disadvantage” within the political arena. But this, he said, is an “unavoidable consequence of democratic government.”
The Problem With Democracy
Religious freedom is much like free speech. Popular, uncontroversial speech doesn’t need legal protection. Popularity provides its own defense. Instead, if you want to measure the strength of a nation’s free-speech laws, look at how they deal with uncomfortable speech, or speech that deliberately throws grenades at the opinions of polite society.
In the same way, if you want to get the true measure of America’s religious freedom, don’t look at the Baptist or Presbyterian church down the road. Instead, focus on how our laws treat religious minorities, whose beliefs and practices may at times seem odd or even downright offensive.
When our own religious freedom rights are comfortably protected, we tend to forget that minorities and majorities in a democracy are not set in stone. They can and do change over time.
In hindsight, there’s an exquisite irony in Scalia’s Smith opinion. When Scalia casually dismissed the political difficulties faced by religious minorities, he had little reason to suspect that his own religious freedom protection could be weakened by Smith. Scalia’s conservative Roman Catholic beliefs and practices were clearly, at the time, in line with America’s cultural and religious norms.
Today? It’s not so clear-cut. Recent national surveys show that Scalia’s traditional Catholic views on human sexuality, for instance, now fall into the bucket of “minority religious beliefs and practices.” America’s religious demographics have shifted and continue to shift. Not only does regular Christian church attendance continue to decline, but a fast-growing number of Americans identify as religious “nones”—unwilling to affiliate themselves with mainstream religious institutions or beliefs.
It’s fair to wonder: In today’s environment, would Scalia still be content to leave religious freedom protections to the benevolent care of America’s political majority?
A Christian-centric Nation
In America the default religious norm has historically been Christianity, and our culture and laws reflect that reality. We see it in the Sunday “blue laws” that are still on the books in some states. We see it in the roster of official public holidays given to school students. We see it in the ways that Christian symbolism and sentiments are woven into the fabric of our civic life—from our currency to our Pledge of Allegiance.
Our society and its institutions have organically developed in ways that accommodate the religious practices of a Christian majority. Thus, it’s the religious minorities who’ve long had the burden of seeking accommodation for their nonmainstream religious practices: a Sikh boy who wants to wear his kirpan to school; a Muslim prisoner who wants to wear a short beard—an exception to prison regulations; an employee who’s a Saturday Sabbath keeper; a Muslim woman who wants to wear a hijab on the job. Or a First Nations tribe whose “church sanctuary equivalent” is a piece of sacred land that’s being threatened by mining rights.
The twist today, of course, is that some from America’s historical religious majority are, on occasion, experiencing what it’s like to be part of a cultural minority. Where once evangelical leader Pat Robertson declared Islam to be “a political movement masquerading as a religion,” evangelical Christianity is now labeled by some on the secular left as “LGBTQ+ hatred masquerading as religious belief.”
Regardless of who’s in the majority and who’s in the minority at any given time, though, the central problem remains the same: democracy is a poor mechanism for protecting minority rights. In a democracy it’s the majority that creates and enforces laws and builds society in its own image. That’s true regardless of whether the majority is Christian or secular.
Getting It Right
Back in the 1970s, philosopher John Rawls proposed an excellent thought experiment for assessing whether the laws of a society were fair for everyone.
Pretend you’re making laws from behind a “veil of ignorance.” You have no idea whether you’re White or Black or Asian. You don’t know whether you’re a conservative Christian or a committed atheist. You could be a woman or a man. You could hold traditional religious views about human sexuality, or you could identify with the LGBTQ+ community. Perhaps you’re financially well off. But then again, you could be a gig-economy worker who’s barely making ends meet.
Now, go ahead and create laws that you’ll be happy with once you step outside the “veil of ignorance” and discover your own racial identity, religious beliefs, and socioeconomic status.
It’s not so easy! For now, despite changing demographics, Christianity in America still holds much of its historical cultural dominance. But in the face of what some perceive as impending minority status, some Christians seem intent not only on retaining cultural power but expanding it through political means. Look no further than the recent attempt in Texas to mandate the posting of the Ten Commandments in every public school classroom.
Perhaps, instead, we should spend more time considering the problems we face as a society from behind a “veil of ignorance”—seeking ways to protect both majority and minority rights. Or perhaps we could use a simpler, even better known, thought experiment proposed 2,000 years ago by Christianity’s central figure: “Do to others as you would have them do to you.”
Article Author: Bettina Krause
Bettina Krause is the editor of Liberty magazine.