In response to Religious Freedom: Maybe Justice Scalia Was Right
We’re both fans of Ramesh Ponnuru. But we think he’s wrong in a recent post here on the Corner. There he argues that we are advocating an un-originalist position for the Free Exercise Clause: requiring the government accommodate religious dissenters from laws, except under certain conditions. He contends that our position is the one ushered in by the Supreme Court in 1963 in Sherbert v. Verner, which was replaced by Justice Scalia’s views for the court in 1990’s Smith. And Ramesh muses that Scalia was probably right.
But Ramesh misunderstands our position. And relies on un-originalist evidence for his. First, the reading of the Free Exercise Clause we primarily advocated was not the 1963-1990 one the Supreme Court adopted. That was our fallback position if the Court was unwilling to go with the clause’s original meaning. And we explicitly stated such.
Rather, we advocated for the original meaning. The scholarship of Michael McConnell has shown, persuasively in our view, that the original understanding of the Free Exercise Clause often required religious accommodations (though we recognize Philip Hamburger takes a different view of the history).
It is beyond this short post to lay out all of this evidence, so we highlight just a few pieces of evidence of the original meaning. When debating the Bill of Rights, particularly the First Amendment, one Congressman argued that the exercise was foolish because of course these rights were protected and Congress might as well be adding an amendment that one has a right to not remove their hat. In response, another Congressman reminded all that William Penn had been prosecuted in England for his refusal, based on religious belief, to remove his hat in court. And that reminder quieted the opposition.
Yet under Justice Scalia’s views in Smith, Penn could have been prosecuted. The law requiring the removal of hats was neutral and generally applicable. Penn’s religious freedom should have fallen if Scalia was correct, yet the Congress that passed the First Amendment didn’t think so.
But there is more. All but two state constitutions at the Founding viewed the right in the way we argue, and these provisions are arguably the basis for the free exercise clause. The practice of religious exemptions was common in the colonies and early states. And the author of the free exercise clause, Madison, viewed it as providing religious exemptions. There is additional evidence, but we are not writing a law review article here.
Strangely, the 1963-1990 Supreme Court, hardly originalist in its methodology, actually got closer to the clause’s original meaning than did Justice Scalia. Even broken clocks are right twice a day.
And that brings us to Ponnuru’s evidence. The oldest evidence he can muster is an 1879 Supreme Court case (Reynolds). But just because Reynolds did not uphold a religious accommodation doesn’t mean the Court didn’t think religious accommodations weren’t sometimes, or even usually, required. The extreme case does not set the bounds of a constitutional right. For instance, a holding that one has no free speech right to shout fire in a crowded theater does not mean free speech rights don’t exist. And even at the Founding there were exceptions to recognizing the right to free exercise. Additionally, Reynolds may not be wrong as an original matter.
Further, Ponnuru says that the lack of the Supreme Court requiring accommodation before 1963 shows that could not be the original meaning. By that logic, the fact that it wasn’t until 2008 before the Court found the Second Amendment contained an individual right to bear arms means that could not be the original meaning.
There are alternative explanations for a lack of Supreme Court cases following what we argue is the original meaning. One is that the First Amendment didn’t apply to the states until the late 1860s, and the federal government was so limited in activity that it wasn’t infringing upon anyone’s free exercise rights (or at least litigation didn’t exist). And courts in the late 19th Century and the first half of the 20th Century were less interested in the Constitution’s original meaning.
What is more, Ponnuru thinks Justice Scalia might be right without acknowledging that Scalia failed to do an originalist inquiry in Smith. Scalia was worried about judicial activism, not the Free Exercise Clause’s original meaning, causing a rare constitutional error on his part. And the consequence of Smith has been a legal regime where lower courts seldom find a free exercise right, and the Supreme Court generally only finds such in the cases of religious persecution, such as in Lukumi or Masterpiece Cakeshop. A reading of the free exercise clause that essentially only protects against the most extreme violations of religious freedom—persecution—is an anemic one, out of touch with its original meaning.
In short, while we both admire Ponnuru’s writing, we think the evidence points to him being wrong on this one. In our view, Madison was right. Scalia was not (which is not something we can often say).