While the late justice Antonin Scalia is generally revered by conservatives, one of his most important opinions has always been controversial even on the Right. In Employment Division v. Smith (1990), Justice Scalia wrote for the majority that religious believers have no First Amendment right to exemptions from laws of general application that happen to place a burden on the exercise of their faith. A government could therefore prohibit drugs without making an exception for the use of peyote in a religious ritual.
Congress reacted to that decision by enacting, with near unanimity, a law creating a statutory right to such exemptions. That law, the Religious Freedom Restoration Act, has been at issue in some contentious cases over the last decade. As conservatives have grown more concerned about threats to religious freedom, their view of the 1990 decision has turned more and more negative. I would not be surprised to see it overturned in the next decade.
On NRO today, John Yoo and James Phillips argue that it should be overturned as part of a larger remaking of the Supreme Court’s religion jurisprudence. They say that Scalia’s decision was not grounded in the original understanding of the First Amendment. “Those who drafted and ratified the Bill of Rights,” they write, “would have understood the right to free exercise of religion to protect religious practice, not just belief.” They are surely correct on that point. But they need quite a bit more to invalidate Scalia’s position.
What they are arguing for, after all, is the view that the First Amendment—by itself, regardless of what statutes Congress (or a state legislature) may enact to protect the practice of religion—requires judges to carve out exemptions to laws for religious believers. The difficulty for this position is that the courts did not take or act on this view for almost the entirety of American history.
In Reynolds v. United States (1879), the Supreme Court upheld a congressional enactment against polygamy over the objection of religious dissidents. When Congress passed the Volstead Act to implement Prohibition, the statute itself included a religious exemption: No court created one. Even in 1943, when the Supreme Court ruled for Jehovah’s Witnesses who objected to having to salute the U.S. flag, it did not give them an exemption from compulsory-salute laws: It threw out the laws altogether as infringements on free speech.
The idea that the First Amendment required (or even authorized) judicial exemptions from laws for religious believers entered the law only in 1963 (and exited it in 1990, when Scalia wrote his opinion). The career of this idea is, that is, nearly coterminous with the high point of Warren Court judicial activism that conservatives usually decry. Perhaps American jurists had all gotten the original understanding of the First Amendment wrong until Justice William Brennan came along. But that claim ought to encounter considerable skepticism, especially from conservatives.