Dahlia Lithwick Wrote about Justice Scalia

by Ramesh Ponnuru

The results, as Ed Whelan explains, are what you’d expect. For example:

Lithwick contends that Scalia’s “clear[] support[]” for the religious objectors in the pending Hobby Lobby case marked “a dramatic about-face from his 1990 position” (in Employment Division v. Smith). Lithwick suggests that the solution to the puzzle is that peyote—the ceremonial drug at issue in Employment Division v. Smith—“didn’t sway him” but that “his own brand of piety” does.

Oddly, Lithwick makes no mention of an important legal development that took place in the interim: the 1993 enactment of the federal Religious Freedom Restoration Act, which statutorily restored (and in some respects arguably expanded) the protections of religious liberty that the Scalia majority opinion inEmployment Division v. Smith determined were no longer available under the Free Exercise Clause of the First Amendment. RFRA means that there was no “about-face” (“dramatic” or otherwise) in Scalia’s position. In 1990, he was interpreting the Free Exercise Clause. In Hobby Lobby, he is applying RFRA. Mystery solved.

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