Why would over 6,000 people stand in line for up to 3 hours, long into the night, in the bitter cold of the nation’s capital on a recent Friday? To pay final respects to a jurist who for decades refocused our nation of laws on its constitutional foundation and the freedoms it protects.
I brought my four children that day to the Great Hall of the Supreme Court so they could see Justice Antonin Scalia’s flag-draped casket, flanked by former clerks standing guard in turn, and a life-size portrait reflecting the justice’s vitality. Behind them in the open courtroom stood his chair, now draped in traditional black crepe, from which I had heard him interrupt counsel with many a piercing question.
I knew Scalia from clerking at the court for Justices Clarence Thomas and Samuel Alito a decade ago. In recent years, our legal team brought three cases defending religious freedom to the court, and each time our arguments resonated with Scalia and we won. I hope here to honor this extraordinary jurist and capture the essence of his contributions to the court’s religious freedom jurisprudence.
Scalia significantly impacted the direction of the court’s Free Exercise and Establishment Clause jurisprudence, the parts of the Constitution that directly shape religious liberty in America. In his 20-some religious freedom opinions (majorities, concurrences and dissents), he confronted a range of our country’s most culturally and politically sensitive issues — teaching creation-science in schools, displaying the Ten Commandments on public grounds, legalizing same-sex marriage, granting public aid to religious individuals, allowing school prayer, addressing religious groups using public facilities, making accommodations for religious minorities, and others.
Scalia did not shrink from calling a fellow justice’s reasoning a “manifesto of secularism” that exhibited a “positive hostility to religion.” He reminded our nation of how religion benefits society: “Today’s religious activism may give us the (creation-science curriculum), but yesterday’s resulted in the abolition of slavery, and tomorrow’s may bring relief for famine victims.” And he chartered a path — guided by his commitment to originalism, textualism and the limited role of the judiciary — that sought to preserve the distinctively American tradition of a robust public square where religion and the sacred actively coexist with the temporal and profane.
In the Free Exercise area of law, Scalia combined two of his core commitments — a restrained role for the judiciary and deference to the people’s democratically elected representatives — to argue that legislatures, not judges, should craft appropriate protections for religious exercise. His fidelity to those principles led to the low-water mark of the court’s Free Exercise jurisprudence in Scalia’s most (in)famous opinion on this topic. The 1990 decision in Employment Division v. Smith abandoned a decades-old constitutional test that balanced unreasonable burdens on religious exercise against the government’s purported compelling interests. Instead, applying a consistent theme of his approach to judicial decision-making, Scalia replaced this balancing test with a bright-line rule: If a law is neutral and applies generally to all, then the court should more easily accept the justification for a government rule that happens to burden religion.
Scalia explained his Smith decision as returning the power to the people (through their legislatures) to create religious exemptions from neutral, generally applicable laws: “Who can possibly be against the abstract proposition that government should not, even in its general, nondiscriminatory laws, place unreasonable burdens upon religious practice? Unfortunately, however, that abstract proposition must ultimately be reduced to concrete cases. The issue presented in Smith is, quite simply, whether the people, through their elected representatives, or rather this court, shall control the outcome of those concrete cases . It shall be the people.”
When the people then spoke, even to oppose his opinion, Scalia listened. He noted that “Congress didn’t like Smith and has enacted (the Religious Freedom Restoration Act) obviously to undo, to the extent it can, the effect of our judgment in Smith.”
In subsequent cases under RFRA and its sister statute the Religious Land Use and Institutionalized Persons Act (RLUIPA), Scalia rigorously used those statutes to create religious exemptions — for a Brazilian spiritist group’s use of a hallucinogenic drug, for evangelical Christians’ refusal to provide abortifacients in their family business’ insurance plans, and for a Muslim inmate’s request to grow a religious beard. Scalia explained, “When a legislature acts to accommodate religion, particularly a minority sect, ‘it follows the best of our traditions.’”
In the Establishment Clause realm, Scalia vigorously defended the “characteristically and admirably American accommodation” of religion in the public square. Looking to our nation’s history and founding traditions, he argued that religion is compatible with a secular republic. In his view, while the Establishment Clause forbids the federal government from creating or supporting a national church, the Founding Fathers would cringe at the notion that displays of the Ten Commandments and prayer in school were an “establishment” of religion in violation of the First Amendment.
For example, in Van Orden v. Perry, where the Court upheld a Ten Commandments display on the grounds of a state capitol building, Scalia affirmed: “(T)here is nothing unconstitutional in a state’s favoring religion generally, honoring God through public prayer and acknowledgment, or, in a nonproselytizing manner, venerating the Ten Commandments.”
Similarly, in Lee v. Weisman, where the court held that clergy prayers at public school graduation ceremonies violate the Establishment Clause, Scalia passionately dissented: “Religious men and women of almost all denominations have felt it necessary to acknowledge and beseech the blessing of God as a people, and not just as individuals, because they believe in the ‘protection of divine Providence,’ as the Declaration of Independence put it, not just for individuals but for societies .”
Dissenting again in Locke v. Davey, where the court upheld a state’s ban on generally available scholarship funds going to students majoring in devotional theology, Scalia exposed the face of discrimination against religious minorities today: “One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the court is so quick to come to the aid of other disfavored groups, its indifference in this case is exceptional.”
Scalia held the line against the advancing wave of derision for religion not only in his opinions. In his piercing commentary during oral argument, Scalia skewered a government lawyer who suggested that the First Amendment didn’t protect religious organizations in their employment decisions. In oral argument for the case Hosanna-Tabor Lutheran Church and School v. EEOC, the government’s lawyer argued that a church was no different than a union or an Elk’s Lodge when it comes to the First Amendment.
Scalia jumped in: “That’s extraordinary. ... That’s extraordinary. ... We’re talking here about the Free Exercise Clause and about the Establishment Clause, and you say they have no special application ... but there, black on white in the text of the Constitution are special protections for religion. And you say that makes no difference?”
We won that case, 9-0. Scalia led the charge during oral argument against the federal government’s attempted neutering of the religion clauses, and that decision established in the canons of constitutional law the “ministerial exception” that protects the very special relationship between a church and its ministers. For his 30-year commitment to our constitution and country, we thank him. May he rest in peace.
Hannah C. Smith twice clerked at the United States Supreme Court and is a member of the Deseret News Editorial Advisory Board. She is senior counsel at The Becket Fund for Religious Liberty, a public interest law firm that defends religious liberty for people of all faiths. Follow Hannah on Twitter @hclaysonsmith. The views expressed here are her own.