Institutions Mark Silk: Spiritual Politics Opinion

Justice Scalia’s terrible religious legacy

Antonin Scalia
Antonin Scalia

Antonin Scalia

At Saturday night’s Republican presidential debate, Ted Cruz claimed that the death of Supreme Court Justice Antonin Scalia had ratcheted up the stakes of the election because, in his words, “We are one justice away from a Supreme Court that would undermine the religious liberty of millions of Americans.” In fact, however, it was Scalia who did more to undermine religious liberty in America than any Supreme Court justice in history.

He did it by creating, and persuading four fellow justices to sign on to, an entirely new of way of interpreting the First Amendment’s Free Exercise clause. A quarter-century ago, in the majority opinion in Employment Division v. Smith, he established that the free exercise of religion could not be violated by “neutral” and “generally applicable” laws.

Smith involved two drug counsellors who were fired from their jobs because, in violation of a regulation against counsellors using drugs, they ingested peyote as members of the Native American Church. Because the regulation was neutral and generally applicable — i.e. it was not directed against a specific religious group or practice — they lost their case.

To be sure, Scalia did not claim to be against granting legal exceptions on religious grounds. “Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process,” he wrote. “It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use.”

The idea of subjecting a core constitutional right to the vagaries of politics appalled civil libertarians and religious bodies of all stripes, and in 1993 a nearly unanimous Congress passed the Religious Freedom Restoration Act (RFRA) to require the Supreme Court to revert to its prior standard of Free Exercise review. Under that standard, known as “strict scrutiny,” the government could substantially burden religious free exercise only if it had a “compelling interest” and did so by the “least restrictive means.”

In 1997, in Boerne v. Flores the Court declared RFRA to be an unconstitutional restriction on its judicial powers, thereby marking the high water mark of Smith jurisprudence. Since then, the justices have in various ways sought to mitigate the impact of the decision without (in deference to Scalia) actually overturning it.

In 2005, they unanimously upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act, which Congress had passed in 2000 to protect the religious activity of prisoners and to give religious institutions protection from burdensome zoning laws. In 2006, they unanimously upheld RFRA as it had been amended in 2003 to be a statutory condition imposed by Congress on federal (but not state) laws and regulations. And in 2012, they unanimously decided that anti-discrimination laws do not apply to religious organizations’ employment of “ministerial” employees.

In the meantime, many states set about enacting their own RFRA’s. Some were statutes, others were constitutional provisions, and there was no uniformity among them. And, as was dramatically demonstrated in Indiana last year in the wake of the Supreme Court’s same-sex marriage decision, the final determination often depended on who could bring the most political pressure to bear.

Handling religious liberty via the current politically fraught patchwork of federal and state laws is grotesque. While it’s not going to be easy to return to the status quo ante, the court can take a good first step this year in Zubik v. Burwell, the case dealing with the Affordable Care Act’s contraception accommodation for religious non-profits.

Now that Scalia is not around to defend it, the justices should declare Smith null and void and decide the case as a straight-up claim under the First Amendment. It’s time to make the free exercise of religion a full constitutional right again.

About the author

Mark Silk

Mark Silk is Professor of Religion in Public Life at Trinity College and director of the college's Leonard E. Greenberg Center for the Study of Religion in Public Life. He is a Contributing Editor of the Religion News Service


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  • What is a “compelling interest” Mark? Some would think that drug regulation would qualify. Religious mandated tatoos as well. Scalia was correct. Free exercise of religion should not mean exemption from laws of general application. Churches routinely have sufficient political clout to ignore zoning and other local regulations. They are in fact privileged to play by different rules. Bell towers spew forth their tunes at theatrical volume, carrying the sectarian messages into our homes.
    As soon as the muslims gane sufficient muscle, we will all be treated to calls to prayer five times per day. Who is to bell this cat Mark?

  • Justice O’Connor did think the drug regulation in question qualified, and I’m not arguing that it didn’t. There will always be disagreements about what’s a compelling state interest and what’s not. The important thing, in my view, is to give claimants their day in court, and to have the Supreme Court set the bar.

  • The federal RFRA was NOT held to be unconstitutional wrt the federal government, but only insofar as it applied to the states.

  • It’s been reported that he went to Confession at least once a week (that’s a lot). Now I understand why.

  • I don’t know what JPII did. He wasn’t the topic here.

    Prof. Mark noted that Justice Scalia has a terrible religious legacy. My point is simply one of agreement.

  • Very well written Dr. Silk. Scalia interpreted religious freedom as Christian frredom, at specific groups of Christians at that. Those erroneous rulings need to be corrected asap.

    Freedom of religion does not mean freedom to control the private health decisions of employees. Follow the law, allow contraception, and use your persuasive, not coercive powers to convince employees to make the choices you prefer.

    I’ve never found any place in the New Testament where Jesus, any apostles, historians or prophets said Christianity should be backed up by governments, by force, economic coercion, or any other forceful means.

  • To the extent RFRA allows a religious person to harm a third party, that third party has had their First Amendment rights violated by the ever-sulfurous entanglement of church with state. RFRA would therefore be unconstitutional.

    To the extent RFRA bestows upon a religious person a benefit that is unavailable to an atheist, that atheist’s Equal Protection rights will be violated when he applies for that same benefit and it’s turned down because a non-theist has no RFRA exemption available. RFRA is therefore also unconstitutional, because Equal Protection distinctions have to be made for rational reasons.

    So RFRA has no constitutional reason to exist. It is simply invidious. The only reason it continues to play havoc with the rule of law is because no sufficiently harmed party has stepped forward to make the constitutional argument.

  • Its about time Democrats put down the monster they created when they pushed for the RFRA. It was a reaction to the one sane ruling Scalia ever penned. Best intentions have become avenues for abuse.

    The Federal RFRA is a lot less egregious than the mini-state versions which are merely attempts at reviving segregation. Its outlived is usefulness.

  • What was well-reasoned about it? The RFRA confers nothing on anyone other than the necessity for the government to demonstrate a compelling interest before it may burden free exercise of religion. Which was the exact same standard used by the Warren Court without much protest from anyone. And which is also consistent with the intention of its drafters: “As the rights of conscience are, in their nature, of peculiar delicacy, and will little bear the gentlest touch of governmental hand”

  • What was well-reasoned about it? The RFRA confers NOTHING upon anyone other than to require the government to demonstrate a compelling interest before it may burden free exercise of religion. The same standard of review that was used during the Warren Court years without much protest from anyone.

  • I have no problem with anyone freely exercising their religion. I do have a problem with them coercing employees to follow the employer’s religious based choices.

  • Nobody was coerced to follow anyone’s choices. Hobby Lobby’s employees can use any kind of contraception they wish. As the court noted, there are other ways for them to get it besides forcing Hobby Lobby to buy it for them.

  • RFRA confers a statutory (but not a constitutional) benefit upon ONLY the religious. That benefit is the statutory (not constitutional) right to violate, under certain minimal conditions, an otherwise religiously neutral, generally applicable law that everyone else (certainly atheists!) must abide by.

    SCOTUS made a mess of the First Amendment in the 60s and 70s in its Yoder and Sherbert cases. Scalia’s Employment Division v. Smith case was the true “restoration”, and all it did was re-affirm the First Amendment principles of “the vast majority of our cases”. Scalia even quoted from the 1878 Reynold’s Mormon polygamy case (the first SCOTUS religious First Amendment case) about not allowing the religious to become “laws unto themselves”.

    Yet that is exactly what RFRAs accomplish.

    Don’t believe me? See Perez v. Paragon Contractors, a recent Utah federal court case. RFRA lets fundamentalist Mormons ignore subpoenas in a criminal investigation of THEIR OWN CONDUCT. How…

  • Mr. Silk, you left out one of the most important and egregious Scalian offenses against religious freedom. His dissent in Lawrence v. tExas, which even he didn’t really believe.

    His support in Lawrence for using secular law to punish religious “sins” elevated his personal, moral disapproval to a civil right. His unrelenting attacks on gay people and our free participation in society, essentially declaring that might makes right and religious ideology trumps secular freedom, are also nowhere to be found in the Constitution.

    It is a shame to our country and an affront to the Constitution he claimed to revere that he viewed baseless prejudice, religious intolerance, and private “morality” as legitimate reasons to legislate against gay people.

  • I can tell you that courts to address the issue have found that atheism can be a “sincerely held religious belief” for Title VII purposes. I don’t see why the RFRA analysis would be different.

  • 1878 was not the beginning of religious liberty jurisprudence, Doug.

    Atheists think the Warren court “made a mess of things.” The Warren era thought the Reynolds case “made a mess of things.” The pendulum swings back and forth on many issues such as these. That’s why the best thing to do is to return to the way the generation which created, drafted, and ratified the 1st Amendment viewed the liberty of conscience and its importance: “The conscientious scruples of all men should be treated with great delicacy and tenderness: and it is my wish and desire, that the laws may always be extensively accommodated to them, as a due regard for the protection and essential interests of the nation may justify and permit.” — George Washington, Letter to the Annual Meeting of Quakers (1789)

  • RFRAs are a symptom of the long struggle between secular reality and human-created, religious metaphors trying to model that reality. Different religions rely on different metaphors. Atheism, on the other hand, is the understanding that metaphorical thought is no more than just that.

    Reality always comes into conflict with invariably inexact metaphors. The Earth isn’t flat, the Sun doesn’t revolve around it, procreative Conception is no longer mysterious nor sacred, …

    In theocracies, the power of the State is used in the service of forced religious metaphors, and controlling people’s thoughts via them. Heresy and blasphemy are the use of police power to ward off dangerous cognitive dissonance.

    Every RFRA more subtly serves a similar purpose: the State should save a devout person from his own flawed metaphorical thought when reality conflicts.

    RFRAs are self-dealt, get-out-of-jail-free cards, antithetical to the First Amendment. The First Amendment gets it right.

  • Scalia ruled against peyote use because he was an authoritarian – he believed that state democracy trumps individual rights unless that right is constitutionally listed. It was really a tragic position. The extant contraception case, however, is not about religious liberty (if it were, it would apply to the employees). It’s about religious power. I am sure Scalia voted for the latter. I am not sure Kennedy did, so this may still be settled law – but not in the way you or the Church want it to be.

  • OK so sexual freedom is now part of religious freedom. Maybe Scalia didn’t like that. But I don’t think the two need to be in conflict.

  • Which Supreme Court cases prior to 1878 Reynolds are you thinking of?

    There is a difference between conscience and conduct, as the authors of the First Amendment well-understood, certainly Jefferson.

    The Jefferson Memorial in D.C. has carved in its dome a beloved quote of his: “I have sworn upon the altar of god eternal hostility against every form of tyranny over the mind of man.” [His was a deist “god”.]

    Missing is the quote’s context: he had just been informed that Christian clergy had been publishing pamphlets calling him “an infidel” (a word we’ve been hearing a lot lately from the religious Middle East)). Yup, tyranny is bad. Especially religious tyranny.

    John Adams’ personal physician, Dr. Thomas Young, the namer of the State of Vermont and an instigator of the Boston Tea Party, detested organized Christian religion, as did his protogé, Ethan Allan. Young had been prosecuted for blasphemy, in pre-First Amendment days, so no wonder.

  • Pardon my frankness, but moonshine. You made your entire argument irrelevant by your conclusion, the by now extremely tired “get-out-of-jail-free” canard repeated ad nauseum on every news forum by anti-theists who in reality have no idea what an RFRA is beyond the misinformation they’ve heard from other antitheists.

    It was exactly the threat of a SCOTUS undercutting the purpose of the 1st Amendment which prompted the passage of the RFRA in the first place to ensure that a degree of scrutiny consistent with constitutional intent would be applied to all laws affecting freedom of conscience. And it was exactly this threat which Washington had in mind when he said: “If I could have entertained the slightest apprehension that the Constitution framed in the Convention, where I had the honor to preside, might possibly endanger the religious rights of any ecclesiastical society, certainly I would never have placed my signature to it.”

  • Hobby Lobby won because RFRA bestows statutory privileges on the religious. That privilege is the right to use super-strict scrutiny on a religiously neutral, generally applicable law. Whereas, an atheist would only get to level a rational basis” level of scrutiny. RFRA is thus a substantial, non-Constitutional right, as SCOTUS explained in its Hobby Lobby and subsequent RFRA decisions.

    Without RFRA, Hobby Lobby would have lost under the religiously neutral First Amendment.

    it’s that simple.

  • There are a handful of RFRA decisions at the SCOTUS level, and some more one level down.

    Just read these decisions’ language. In every case, the Justices make it very clear that the issues being decided are NOT First Amendment issues.

    You may not like the “get-out-of-jail-free” card metaphor, but it’s still apt. The reason RFRAs have been enacted is so that certain religious folk don’t have to suffer the consequences of violating religiously neutral, generally applicable anti-discrimination law. And remember, RFRA applies to federal criminal laws as much as to federal civil laws. So jail is a possibility.

    When fundamentalist Mormons, with a documented propensity for violating generally applicable and religiously neutral polygamy, statutory rape, and perhaps child labor laws, can thwart a federal investigation via a RFRA exemption, it is most definitely a “get-out-of-jail-free” card.

    The First Amendment would never permit that.

  • Of course they were coerced financially. I’m pretty sure you know that, but you’re playing with semantics because technically, you are correct. Technically, but not in the real lives of people.

  • “Without RFRA, Hobby Lobby would have lost under the religiously neutral First Amendment. it’s that simple.”

    “Simple” it isn’t. The Court never said the 1st Amendment argument would have lost, only that it wasn’t necessary. Against the panorama of our nation’s entire history as well as current trends, there is every possibility that a 1st Amendment argument would have prevailed as well. Most recent 1st Amendment challenges have.

    Long before there was any question of any and every “generally applicable law” trumping our first and foremost civil liberty, the same generation that ratified the Constitution were granting conscience exemptions from military service to Quakers and exemptions from oaths of office to anyone who objected to them for reasons of conscience. It is unlikely that the founders intended to put the kind of prohibitions you imagine into the Bill of Rights and then proceed almost immediately to violate them.

  • The government engineered the mandate. The government can provide the morning after pill and the IUD. Exactly as the court said.

    This whole idea of needing to have one’s birth control paid for by someone else is simply stunning to me. I paid for my own for years without it ever occurring to me that my human dignity was being irreparably victimised…or somesuch. What a soft generation we’ve become.

  • And now we add the canard of “the founders (and the founders’ physicians! Oh my!) hated religion.”

    Most certainly Jefferson had issues with clergy but he certainly did not “hate religion.” And even if he had, that would not mean that he could not honor the true purpose of the 1st Amendment. Indeed he could not even bring himself to oppose (except as a matter of opinion) the establishment of religion by the various states.

  • Scalia’s originalism means understanding how the founding generation thought, what the words they used meant to them, not to us, etc. etc.

    Anyone interested in the history of enlightenment philosophy and freedom of religion and the First Amendment and the values and views of the founders, particularly why so many of them were best described as “deists”, should order up and read the following book:

    NATURE’S GOD: The Heretical Origins of the American Republic

    by philosopher Matthew Stewart (Norton, 2014).

    It’s a meticulously documented account of the intellectual environment of the founders, including the usual suspects like Jefferson and Franklin and Paine, but with an emphasis on lesser known but still quite influential founders, like Dr. Thomas Young (mentioned in one of my posts above).

  • Your examples of conscience exemptions are ones where it is essentially impossible for any specific person to come forward to claim harm (which confers standing in the courts).

    A law that exempts a religious person from an otherwise neutral requirement or prohibition had better not be permitting that religious person to harm another person, or the exemption violates the First Amendment rights of that other person.

    This is why RFRAs are utterly divisive. They are so broadly worded that they fool the religious into thinking it’s acceptable to harm others as a matter of conscience. Like discriminating against gay couples in the public marketplace, withholding contraceptive health care, not reporting child abuse to secular authorities, etc.

  • A better idea is to simply read the Federalist Papers, the debates surrounding the drafting of the Constitution and its amendment, and the private papers of the founders themselves. I always prefer that to someone from a later time telling us what they thought.

  • Child abuse reporting is one thing…but subcontracting out a wedding party job or referring it to another provider who does gay weddings is not a harm, nor is not buying for someone a couple of abortifacients which can be obtained elsewhere — not when balanced against the Constitution’s first and foremost civil liberty.

    I could be wrong, but from the decisions we see trending as well as the SCOTUS’ refusal to tie the Obergefell ruling to any established equal protection logic, ultimately I think this kind of issue is something the SCOTUS will end up leaving to the states.

    Thanks for the interesting discussion.

  • Many of them were deists, indeed, but that doesn’t mean that they were enthusiasts for same sex marriage, abortion “rights,” etc.

  • The necromancy skills of Constitutional Originalists must be strong as they know intimately the thoughts of people long dead for centuries. They are capable of summoning them up to get their exact opinion on a given subject in the here and now. So much so that it is supposed to be much more reliable than applying legal reasoning, considering precedent, or making decisions in the interests of justice.

  • He was overweight, a smoker and 79 years old. The question is not why he died when he did, it was what kept him alive so long.

  • So when you favor legislation, it is the will of the majority vote, but otherwise its government engineering. It never occurred to you that there were plenty of people lobbied to include the contraception mandate into the ACA. You can’t consider such a thing. Therefore they do not exist.

    BTW even the insurance companies lobbied for it. Contraception is a net claims gain for them.

    There are certainly no rational arguments to be made against access to contraception. Without religious based whining and authoritarian conduct, this would be a non issue.

  • You are wrong. Obergfell was tied in entirely to equal protection concepts. Hence the idea of leaving such facially discriminatory laws such as gay marriage bans on the books was taken away from the states.

    Pretending discrimination in open commerce is not harmful is just pure bovine effluence. As is employers interfering with personal medical choices for employees. You try to polish those dookies with euphemistic language, but the stink remains

  • “So much so that it is supposed to be much more reliable than applying legal reasoning, considering precedent, or making decisions in the interests of justice.” It routinely goes into all three of those things. However, since a movie has not yet been made of the Federalist Papers or any of the other founders’ writings, it is all effectively necromancy to you, Lare.

  • Nobody was opposing contraceptive access in the Hobby Lobby case. They provide a foot-long list of contraceptives. All they had issues with were the abortifacients — the morning-after pill and a couple of IUD’s. Go get some facts.

  • You can’t be expected to realize it, of course, but no equal protection argument whatsoever was made in Obergefell, nor in any concurring opinion. And don’t think that fact wasn’t noted by many disappointed onlookers. And don’t think there wasn’t a reason for it.

  • @Hcat: I could post some legislative proposals that Jefferson (the least religious of all the founders) authored concerning penalties for same-sex conduct in Virginia, but the censors would probably delete it.

    The funny thing is, he thought he was being quite liberal about it all.

  • Like I said, the book is meticulously documented, from primary sources. The footnotes alone take up 95 pages.

    The author quotes tons of their writings. It’s not just someone at a later time “telling us what they thought.”

  • You are entitled to your own opinion but not entitled to your own facts. There is not hint of an honest presentation as to what happened in your post. In fact it was even demonstrated in court that the belief that abortiofacents were involved was completely false.

    This was all about pretending an employer religious beliefs were grounds to force employees to comply with them. The decision itself was neutered by subsequent laws. So it’s all academic at this point.

  • Again you feel entitled to your own facts here even when it runs counter to reality. The arguments in defense of the gay marriage bans were irrational nonsense when presented in court and in the dissenting opinions. There was simply no legitimate argument to be made for them.

    But in your mind, the court must have done something wrong. Because …you didn’t like the results.

  • You really have a problem with veracity. Original Intent is done specifically to avoid all other forms of analysis. “the founders intended …, therefore we get to ignore 200+ years of interpretation, or applying legal reasoning”. And it’s all creative necromancy. Pretending to know the minds of founders by proof texting and quote mining. Dishonest nonsense. Scalia was notoriously inconsistent with his own theories.

  • They’re not abortifacients if you consider pregnancy to begin at implantation, but they are if you consider it to begin at conception. Doctors, of course, inform their patients of all this when prescribing contraception as it affects many patients’ choices. Contraception itself is not the issue.

  • “The arguments in defense of the gay marriage bans were irrational nonsense when presented in court and in dissenting opinions.”

    This has nothing to do with equal protection Larry. No equal protection analysis was even attempted. There were reasons for that.

  • Proof texting and pretending long dead figures would agree with your current ideas while forgoing any changes which occurred over the last 200+ years. Such as the role of the judiciary as a check on “the will of the people” (legislative power) when such will is expressed in the form of attacking the rights of political minorities. Exactly the sort of nonsense I was describing. Thank you for proving my point.

  • LOL. Of course laws don’t need to be even remotely rational, especially if they attack the rights of others. After all that is the whole point of the Equal Protection clause. 🙂

  • If the question were actually equal protection, dear, then the standard of review would not be rational basis. It would be considerably higher.

    Again, no equal protection analysis was attempted. That would have taken the Court into a maelstrom where they obviously do not wish to go. The decision was entirely premised upon hazy theorizing about fundamental rights that would procure the particular political result they desired but would not inevitably lead to another generation of the kind of EP wrangling that we had over race.

  • The question is not whether the judiciary is a check upon the legislature or not — clearly it is. The question is whether the law at issue is something that the constitution allows the judiciary to invalidate. That is where, as per the Federalist and Anti-Federalist papers, judges are obligated by duty and oath to demonstrate greater self-restraint and imperviousness to popular opinion than most people possess. Hamilton appears to have had greater faith in the integrity of future justices than did Jefferson, who did not trust them at all.

    BTW, why do you hate our constitution so much? Why do you hate rule of law?

  • 2. Silk’s says that under “strict scrutiny,” the government could substantially burden religious free exercise only if it had a “compelling interest” and did so by the “least restrictive means.”

    This is also subtly incorrect. The two legal elements of strict scrutiny are “compelling interest” and “narrow tailoring”. The second of these is not the same as “least restrictive means”, and any legal analysis under “narrow tailoring” need not (and usually won’t) arrive at the same conclusion as an analysis using a “least restrictive means” test. Scalia definitely would have understood the principle. Different words in the law nearly always mean different things.

    Marci Hamilton, who convinced SCOTUS to hold RFRA unconstitutional in 1997, characterizes the “least restrictive means” test as “super-strict scrutiny”. She’s right (read the Amicus brief she recently filed in the Zubic RFRA SCOTUS case).

  • 4. Again, Prof. Silk asserts that SCOTUS

    unanimously upheld RFRA as it had been amended in 2003.

    No, they didn’t “uphold” it. They merely enforced its terms because it is a duly passed statute, and the parties never presented any argument that RFRA was unconstitutional. Courts, including the Supreme Court, are not supposed to reach constitutional arguments except as a last resort. The same is true for many other RFRA cases.

    When a party starts arguing constitutionality, things are going to become much more interesting on the “upholding” front.

  • 5. Finally, Silk says

    It’s time to make the free exercise of religion a full constitutional right again.

    This is misinformed “applesauce”, to use a fun Scalia phrase.

    We have had the same religious liberty in America just as we have had it for over 200 years. But under RFRA and RLUIPA style laws, the Christian right wants an extreme form of religious liberty: the right to exercise religion even if it harms others, either specifically or collectively, contrary to duly and democratically enacted, religiously neutral, generally applicable, constitutional statutes that are supposed to apply to and protect everyone similarly situated on the basis of rationally understanding actual (rather than symbolic, metaphorical) harms that we can all cause each other.

    RFRAs are theocracy-lite, and they are antithetical to the rule of law. Scalia got it right in Smith.