I’ve only just read Allen Hertzke’s Weekly Standard essay criticizing Justice Scalia for providing insufficient protection to religious liberty, even though it came out a few weeks ago. Hertzke revisits a long-running dispute on the Right. In a 1990 case, Scalia ruled for the Court that the First Amendment does not require exemptions from generally applicable laws for religiously motivated acts. Thus in the case at issue a state government was not required to provide unemployment benefits to people fired (from a drug-rehab clinic) for using peyote for religious purposes. States could make legislative accommodations for religious believers, but courts could not make them do so.
This is the ruling that Hertzke condemns. His argument is entirely results-driven: He claims that the ruling makes it too easy for governments to impose burdens on religious believers. At no point does he advance an argument that the religious exemptions he favors are actually required by the Constitution. He doesn’t argue that the original understanding of the Constitution is at variance with Scalia’s ruling; he doesn’t argue that we shouldn’t look to the original understanding. As far as I can tell, we’re supposed to reason from sympathy for religious believers to a supportive Supreme Court decision. I’m glad Justice Scalia doesn’t make rulings in that fashion.