Only one slope is slippery. Justice Breyer was concerned at oral argument, in Locke v. Davey, about the implications of deciding in favor of the college student who asserted a Free Exercise Right. (See previous post.) But what are the implications of deciding to permit the state to discriminate based on religion as it doles out various benefits?

Justice Scalia ends his opinion with this set of concerns:

Today’s holding is limited to training the clergy, but its logic is readily extendible, and there are plenty of directions to go. What next? Will we deny priests and nuns their prescription-drug benefits on the ground that taxpayers’ freedom of conscience forbids medicating the clergy at public expense? This may seem fanciful, but recall that France has proposed banning religious attire from schools, invoking interests in secularism no less benign than those the Court embraces today. See Sciolino, Chirac Backs Law To Keep Signs of Faith Out of School, N. Y. Times, Dec. 18, 2003, p. A17. When the public’s freedom of conscience is invoked to justify denial of equal treatment, benevolent motives shade into indifference and ultimately into repression.

I'm sure some people will find that odd, coming from Justice Scalia, because he wrote the opinion for the Court in Smith, the case that decided that generally applicable laws are constitutional even if they burden religion. Under that test, a school could have a general rule against wearing any head coverings without violating the Free Exercise Clause. But Scalia advocates neutrality toward religion. The proposed French law he cites is not a neutral law, but a law that targets religion. According to the cited NYT article, Chirac described his law as a frank discrimination against religious expression:

"In all conscience, I believe that the wearing of dress or symbols that conspicuously show religious affiliation should be banned in schools ... The Islamic veil — whatever name we give it — the yarmulke and a cross that is of plainly excessive dimensions: these have no place inside public schools. State schools will remain secular. For that a law is necessary."

So I would let Scalia off the hook about that point. More important is that the majority, by taking a more flexible approach to the Religion Clauses, preserves more ability to decide future cases pragmatically. Scalia's neutrality test is offered as a hard rule, and a hard rule will dictate outcomes, so deciding one case in a particular way will demand that other cases be decided in lock step. Sorry, but the slope is only slippery on one side. Criticize them all you want for being unprincipled, but the majority can stop its descent down the discrimination slope whenever it wants.