Bench Memos

Law & the Courts

‘Scalia’s Worst Opinion’

Posted at Public Discourse today is a short piece of mine commemorating — lamenting, really — the 25th anniversary today of what I call “Justice Scalia’s Worst Opinion” in his nearly 30 otherwise brilliant years on the Court: Employment Division v. Smith (1990).

Smith is the well-known “Peyote Case,” in which Scalia, for a 5-4 majority, adopted the most narrow possible reading of the Free Exercise Clause of the Constitution, concluding that the First Amendment’s ban on laws “prohibiting” the “free exercise” of religion stated a non-discrimination rule only. Government could not target specific religious practices for prohibition, and could not prohibit conduct because it is engaged in for religious reasons. But if a “neutral” and “generally applicable” rule had the effect of banning religious practice or religiously motivated conduct, that was not a law prohibiting the free exercise of religion.

Scalia’s reading of the Free Exercise Clause was not entirely implausible: There is at least a colorable argument from the text (and history) that the Free Exercise Clause states a rule about the formal content of government’s rules — that government may not adopt a law that, by its terms, prohibits religious exercise. But the better conclusion (as I argue in today’s piece, and at greater length in my academic writing on the topic) is that the Free Exercise Clause confers an affirmative substantive right to the free exercise of religion, unimpaired by government’s laws, and that this sometimes may indeed confer an immunity, specifically for religious conduct, from government’s usual rules. (What was less plausible was Scalia’s manipulation in Smith of the Court’s prior Free Exercise Clause precedents, which Scalia refashioned into rather unprincipled, incoherent exceptions to his refashioned rule.)

I argue that Smith is a positively perverse reading of the Free Exercise Clause: As the sphere of government expands, the sphere of religious liberty contracts. And it has proved unqualifiedly pernicious in its consequences.

Here’s a generous excerpt from the piece:

Today marks the twenty-fifth anniversary of a constitutional disaster. Justice Antonin Scalia’s majority opinion for the Court in Employment Division v. Smith has proven to be one of the most devastatingly long-term harmful Supreme Court constitutional decisions of the past half century.

In a nutshell, Smith held that the First Amendment’s protection of the right to the “free exercise” of religion does not confer a substantive freedom shielding religious faith from laws and regulations that impair its free exercise. Rather, the Court held, the Free Exercise Clause permits governments to enact laws that restrict the exercise of sincere religious conviction. They just can’t be explicit about it. Such laws must be “neutral” on their face—meaning that they apply to non-religious conduct as well as religious conduct. If a law merely has the effect of preventing or banning the exercise of religion, that is not a constitutional problem under the Free Exercise Clause, according to Smith.

Smith produces a strangely ironic reading of the Free Exercise Clause. According to this view of the Constitution’s protection of the “free exercise” of “religion,” there is nothing constitutionally special about the free exercise of religion. Religion is just one other thing that might get in the way of government’s ordinary powers, no different in kind from any other set of beliefs or preferences that might be opposed to government policy. The right to the free exercise of religion is not a substantive freedom. It confers no constitutional immunity from government interference. The Free Exercise Clause is merely a non-discrimination rule. Government may not set out to target, or discriminate against, religious conduct because it is religious conduct. But if government’s primary aim is some general policy, the fact that government incidentally hits religious conduct presents no special constitutional problem.

Smith’s rule is not completely implausible, but it is wrong. . . .

Smith’s reasoning—its structure, logic, and content—is dreadful. And, given its author, almost inexplicable: Antonin Scalia is one of the most brilliant, principled, sound, and thoughtful jurists ever to sit on the Supreme Court. But his legal skills utterly failed him in Employment Division v. Smith. His opinion for the Court was his worst piece of judicial craftsmanship in a major constitutional opinion in nearly thirty otherwise magnificent years on the Court.

Scalia argued that because the free exercise clause plausibly could be read as embodying a neutrality-is-all-that’s-needed rule, that was sufficient to make it the correct understanding of the clause because—here comes the shockingly un-Scalian part of Scalia’s opinion—this was the preferable public policy. Antonin Scalia—Mr. The-Constitution-Is-Not-A-Living-Document—wrote that, given changes in American society, and changed cultural conditions of increased religious pluralism, we could no longer “afford the luxury” of a broad understanding of religious liberty . . . Even if that might have been acceptable in the past, it would no longer do, for reasons of sound social policy and changed circumstances: “Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs.”

I remember being shocked, as a young Department of Justice lawyer, to read this in, of all things, a Scalia opinion. Policy considerations trumping what one otherwise might find to be the meaning of the constitutional text? The Constitution needs to yield to the needs of a changing society? Who are you, and what did you do with Antonin Scalia?!

The opinion reads no less strangely today.—perhaps even more so, given a quarter century of Scalia’s uncompromising defense of original meaning as essential to the rule of law. One would expect from Scalia something more along these lines: So what if a constitutional provision might be thought inconvenient, anachronistic, or awkward for today’s society? Isn’t that what the constitutional amendment process is for? As long as a constitutional provision remains in force, it remains in force; its meaning remains its original meaning; and judicial duty is to enforce it without reservation, like it or not.

Michael Stokes Paulsen — Mr. Paulsen is a professor of law and distinguished university chairman at the University of St. Thomas, in Minneapolis.

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