The real fix is to repeal Employment Division v. Smith, which despite his otherwise impressive record as a justice, was the worst decision Justice Scalia ever penned, and one that I'd wager he regretted toward the end of his life and tenure.
Sometime in the late '90s, I had the opportunity to ask Scalia a question about this after hearing him speak at a local university. His view (at the time, at least) was that the free exercise clause prohibited only laws that were clearly targeted at religious practice, but he expressed the view that Americans are a very tolerant people, and that conflicts between religious conviction and public policy can and should be fairly resolved by the legislative process and/or negotiation. He felt that the passage of the RFRA illustrated that fact. I think it is likely that his optimistic assessment of Americans' tolerance for dissent might be different now.
Peace,
Jon
Thanks for sharing this, I am very envious of this encounter. It supports my speculation above, that Scalia hoped that good will by all parties would allow this to be sorted out in the democratic process, not in courtrooms. Obviously the reality has been otherwise, given the scorched earth mindsight of zero tolerance for intolerance.
Really disappointing, given how there are plenty of exceptions in prior/existing law for religious minorities (the Amish previously referenced being a prime example) in deference to the First Amendment. Unfortunately the zeal of the equality crusaders are ignorant of such things. Such an accommodation would have prevented this Philadelphia court case. It seems likely the city will do the opposite of what Scalia would have hoped in
Smith, grabbing the loophole in
Fulton to remove ALL exemptions so that discretion can't be challenged as arbitrary and therefore discriminatory towards religion, and allowing it to continue excluding the Catholic agency from the system. Because the one thing that cannot be tolerated is intolerance, in others.