The “big three” issues in Religion Clauses jurisprudence are: (1) whether and how judges should decide claims to free exercise exemptions from generally applicable laws; (2) when government religious speech violates the Establishment Clause; and (3) when even-handed funding of religious organizations and activities violates the Establishment Clause.  In all three areas, the Supreme Court has shifted its position dramatically over the thirty years that Justice Scalia served on the Court, and in each area he was a significant voice pushing the Court to doctrinal change. The Court has not yet fully adopted Scalia’s approach to the Establishment Clause, but the trajectory on which the Court has been traveling will – if continued – lead to positions very close to the ones Scalia endorsed.  This first of two posts deals with Scalia’s impact on free exercise law.

Justice Scalia’s single most significant church-state opinion, Employment Division v. Smith (1990), holds that the First Amendment is not violated when “neutrally and generally applicable laws” burden religious exercise. To understand why Smith was such a momentous decision, this blog (briefly) reviews (some of) the history leading to Smith.

The most difficult question in free exercise law is how to treat situations where a law passed for legitimate secular purposes burdens religious exercise. Should courts be empowered to grant religious exemptions under these circumstances, or should exemptions be solely a matter of legislative discretion (subject to limits imposed by the Establishment Clause)?

When Scalia joined the Court, the leading cases of Sherbert v. Verner (1963) and Wisconsin v. Yoder (1972) ostensibly entitled claimants to an exemption from any law that “substantially burdened” their religious exercise unless the government could prove that denying the exemption was the least restrictive means to serve a compelling government interest. This sounds like strict scrutiny, but apart from Yoder, Sherbert, and a handful of unemployment compensation cases following Sherbert, religious claimants lost in every free exercise case to reach the Supreme Court between 1963 and 1990.

Smith presented the question whether Native Americans who ingested peyote as their central religious ritual were entitled to a free exercise exemption from Oregon drug laws. Under Sherbert/Yoder, the claimants had a strong argument that Oregon drug laws substantially burdened their practice, and the key issue in the case was whether making an exception here would undermine the state’s drug enforcement scheme.

Instead of focusing on this question, Justice Scalia rejected the Court’s Sherbert/Yoder jurisprudence as a sham. The Court had not been willing to adhere to its purported strict scrutiny standard in practice because genuine adherence to that standard would make every religious believer a law unto herself. To avoid this result, the Court had in fact engaged in ad hoc balancing – weighing religious interests against government interests case-by-case in an intuitive search for the “right” amount of religious-liberty protection. The religious side of the balancing process was especially problematic. Courts asked whether burdens were “substantial” or burdened practices were “central” to a believer’s faith because to treat every believer’s claim of religious burden as demanding significant government justification would create anarchy. Efforts to weed out some claimed burdens, however, put courts in the position of second-guessing believers about their own faiths – a practice the Court’s own case law had condemned in unequivocal terms. Smith limited Sherbert and Yoder to their facts – not very convincingly, some would add – and proclaimed a new rule: courts would no longer grant religious exemptions from neutral, generally applicable laws. Religious claimants burdened by neutral laws would have to seek solace from legislatures.

In these highly polarised times, much is inevitably (and justifiably) made of Scalia’s “conservatism” and possible doctrinal changes that might follow in the unlikely event President Obama succeeds in appointing his successor. To be sure, progressives can assail Smith as a “politically conservative” opinion. In one (for some) notorious passage, Scalia wrote that while leaving religious exemptions to the discretion of the legislature would inevitably place minority religions at a disadvantage, this was an “unavoidable consequence of democratic government.” Progressives might contrast this unfavourably with Justice Jackson’s famous statement that the “very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy.” Yet while the left once perceived Smith as “anti-minority,” the right saw the case as insensitive to claims of religious liberty quite generally. These perceptions led to overwhelming bipartisan support for the Religious Freedom Restoration Act (RFRA) (1993), which purported to overrule Smith. On religious exemptions, Scalia’s political conservatism mattered less than his conception of the judicial role. Not the role of “judge as seeker of original meaning” – for Smith is bereft of originalist argument. Rather, Scalia’s fundamental concern in Smith was that the Sherbert/Yoder regime prevented judges from acting as judges, whether they used their power to aid religion or to hinder it.

The most fractious questions of religious liberty today concern the statutory religious liberty regimes (i.e. the federal RFRA and its state analogues) that arose from dissatisfaction with Smith. Controversies related to changing social norms about sexuality have led some progressives to suggest that, in practice, RFRAs are beginning to prove far more protective of religious interests than Sherbert and Yoder ever were, to the detriment of gender equality and gay rights. In Burwell v. Hobby Lobby Stores, Inc., the Supreme Court squarely rejected arguments that requiring a closely-held corporation to provide health insurance covering certain contraceptives was not a substantial burden. The Court will next decide whether even filling out a form stating religious objections to providing contraception is a substantial burden. It appears that in reading RFRA, the Court has taken seriously at least some of Justice Scalia’s worries about balancing religious and state interests: the Court appears to be headed toward the conclusion that “substantial burden” imposes no meaningful limit on the sorts of religious claims that might warrant government accommodation.

But when Scalia wrote Smith, his view was that courts’ inability to draw lines among claimed religious burdens meant that courts should not be granting religious exemptions at all. Today some progressives appear to be taking that message to heart, and the ideas in Smith are perhaps more attractive to the left today than they were when Smith was decided. I’m not sure Justice Scalia would have been pleased about that, but perhaps one indicator of a Justice’s influence is that his legacy can develop in unexpected directions.

Editorial Note: This is the latest post in the OxHRH series on how Justice Scalia’s judicial approach and reasoning has influenced rights-based protections across significant areas of the law.