Scalia’s Goof

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During yesterday’s oral argument in Hosanna-Tabor, Justice Antonin Scalia took umbrage at Assistant to the Solicitor General Leondra R. Kruger’s claim that the case–involving a teacher fired from a Lutheran school–should be treated like any other labor dispute. “That’s extraordinary. That’s extraordinary. We are talking here about
the Free Exercise Clause and about the Establishment Clause,” declared the justice. “There is
nothing in the Constitution that explicitly prohibits the government
from mucking around in a labor organization … but here, black on white
in the text of the Constitution, are special protections for religion.”

Ah, but 21 years ago, was it not the same Justice Scalia who turned Free Exercise jurisprudence on its head by writing, in the majority opinion in Employment Division v. Smith, that any “neutral law of general applicability” was sufficient to turn back a constitutional claim that the government had violated one’s religious freedom? And doesn’t the Americans with Disabilities Act, under which the teacher is suing to get her job back, constitute a neutral law of general of general applicability? And isn’t the so-called “ministerial exception” offered by the church as grounds for being able to fire the teacher without regard to the ADA a claim of free exercise? Yes, yes, and yes.

Representing teacher Cheryl Perich was Walter Dellinger, who as acting solicitor general in the Clinton administration appeared before the Court to argue for the Religious Freedom Restoration Act, which was designed to overturn the baleful effects of Smith and which the Court duly declared unconstitutional. Dellinger slyly reminded Scalia et al. of what they had done in Smith by explaining (according to Dahlia Lithwick’s report) “that under the rule proposed by the church, even though a
religious school could constitutionally be prevented from using peyote
in its ceremonies, it could fire, without judicial recourse, any employee who reported that use.” (In Smith, the Court decided that two drug counselors could be fired for using peyote as a sacrament of the Native American Church because of the country’s neutral, generally applicable drug laws.) So if a church doesn’t enjoy the religious liberty to employ peyote as a sacrament, why should it enjoy the religious liberty to fire an employee for reporting the use of peyote as a sacrament?

There are good reasons for the Court, which has never addressed the ministerial exception, to uphold it, at least for full-time clergy. The best, for my money, is that it would give the justices an opportunity to reverse Smith and its progeny, which have gone a long way towards gutting the Free Exercise Clause. It would, of course, be lovely to see Scalia acknowledge the error of his ways. But I don’t expect to live that long.

  • bammbamm

    Also nice to pat yourself on the back for winning an argument against an absentee opponent.

  • Richard Foltin

    I certainly agree that this would be a wonderful time (any time would be) to reverse Smith, but the Court — and Justice Scalia — need not go there to find that there is a ministerial exception. In Smith, Justice Scalia made it clear that the Court was not intending to disturb doctrine that the government may not “lend its power to one or the other side in controversies over religious authority or dogma [citing Presbyterian Church v. Hull Church; Kedroff v. St. Nicholas Cathedral; Serbian Eastern Orthodox Diocese v. Milivojevich].” The religious liberty interests protected by that doctrine are at play where a religious body’s selection of clergy is involved. It is not necessarily inconsistent, then, for Justice Scalia to have joined with Justice Kagan in pushing back against the notion espoused by the Government that church employment does not implicate the Religion Clauses.

  • Mark Silk

    I take your point, Richard. Nevertheless, it seems to me that Smith provides principled grounds for doing away with the ministerial exception–as Dellinger implied. And Smith is Scalia’s great contribution to First Amendment jurisprudence.

  • I’m no fan of the Smith case. But it is not inconsistent with vigorous religious institutional autonomy. Scalia’s argument in Smith was not that religion had no special status under the Constitution, but that religion-based exemptions were, in their structure, a “constitutional anomaly.” For reasons I discussed in law review article a few years ago (see ), the ministerial exception and other aspects of religious self-governance are not “anomalous” in that same way.

  • Richard Foltin

    Mark, I trust that your reference to Smith as Scalia’s “great” contribution to First Amendment jurisprudence is ironic. Re Dellinger, I certainly don’t blame him for reminding the Justice of the problems created by Smith. However, Dellinger did begin his argument by saying that “I believe that there is an exemption grounded in the religion clauses. It means that religious organizations will win, will prevail in many cases in which a comparable civil organization would not prevail.”

  • Mark Silk

    Ironic, yes. Have an easy fast, Richard.