Serving Two Masters: Shariah Law and the Secular State

A few weeks ago, the Cardozo School of Law mounted a conference marking the 20th anniversary of Employment Division v. Smith (1990), a case in which the Supreme Court asked what happens when a form of behavior demanded by one’s religion runs up against a generally applicable law — a law not targeted at any particular agenda or point of view — that makes the behavior illegal. (The behavior at issue was the ingestion of peyote at a Native American religious ceremony.) The answer the court gave, with Justice Antonin Scalia writing for the majority, was that the religious believer must yield to the law of the state so long as that law was not passed with the intention of curtailing or regulating his or anyone else’s religious practice. (This is exactly John Locke’s view in his“Letter Concerning Toleration.”)

“To make the individual’s obligation to obey . . . a law contingent upon the law’s coincidence with his religious beliefs” would have the effect, Scalia explains, of “permitting him, by virtue of his beliefs, ‘to become a law unto himself.’” And if that were allowed, there would no longer be a single law — universally conceived and applied — but multiple laws each of which was tailored to the doctrines and commands of a particular faith. In order to have law in the strong sense, Scalia is saying, you can have only one. (“No man can serve two masters.”)

Read more of this article in the New York Times’ Opinion Pages

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