Scalia’s top 5 hits (or misses) on religion

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Supreme Court Associate Justice Antonin Scalia testifies before the House Judiciary Committee's Commercial and Administrative Law Subcommittee on Capitol Hill May 20, 2010 in Washington, DC. Scalia and fellow Associate Justice Stephen Breyer testified to the subcommittee about the Administrative Conference of the United States. Photo by Stephen Masker via Flickr creative commons. https://www.flickr.com/photos/stephenmasker/4668514068/

Supreme Court Associate Justice Antonin Scalia testifies before the House Judiciary Committee’s Commercial and Administrative Law Subcommittee on Capitol Hill May 20, 2010 in Washington, DC. Scalia and fellow Associate Justice Stephen Breyer testified to the subcommittee about the Administrative Conference of the United States. Photo by Stephen Masker via Flickr creative commons. https://www.flickr.com/photos/stephenmasker/4668514068/

Guest post by Daniel Bennett

With Antonin Scalia’s sudden passing over the weekend, the U.S. Supreme Court lost one of its most passionate and controversial voices.

In the nearly three decades since his appointment to the nation’s highest court, Justice Scalia cultivated a reputation as an ardent voice for legal conservatism. In that time, the Court rendered decisions on virtually every legal question imaginable, with Scalia offering his pen—and acerbic wit—to hundreds of majority, concurring, and dissenting opinions.

Scalia was especially zealous on the issue of religion. As exemplified by recent comments on the place of religion in the public square, Scalia’s legal writing on religious establishment and free exercise is some of his most memorable.

Below is a list of Scalia’s greatest hits—or, depending on where you sit, misses—on religion.

1. Employment Division v. Smith (1990)

In ruling that the First Amendment did not require Oregon to exempt two men from laws criminalizing peyote use, Smith changed the way the courts issues of religious liberty. The case also paved the way for the Religious Freedom Restoration Act, which sought to roll back some of Smith’s influence. Scalia authored the majority opinion here, arguing requiring state accommodations to neutral laws that affect religion are constitutionally suspect:

The government’s ability to enforce generally applicable prohibitions of socially harmful conduct, like its ability to carry out other aspects of public policy, “cannot depend on measuring the effects of a governmental action on a religious objector’s spiritual development.” To make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is “compelling”—permitting him, by virtue of his beliefs, “to become a law unto himself”—contradicts both constitutional tradition and common sense.

2. Lee v. Weisman (1992)

The Court held that certain prayers at high school graduations violate the Establishment Clause due to the coercive effects such prayers have on students. In a dissenting opinion, Scalia blasted the so-called coercion test:

In holding that the Establishment Clause prohibits invocations and benedictions at public school graduation ceremonies, the Court…lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless, and boundlessly manipulable, test of psychological coercion….

3. Lamb’s Chapel v. Center Moriches Union Free School District (1993)

While concurring with the Court’s decision that public schools must grant religious groups access to facilities so long as they remain open to other groups, Scalia memorably criticized 1973’s Lemon v. Kurtzman and its test identifying unacceptable government support for religion:

Like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and school attorneys of Center Moriches Union Free School District. Its most recent burial, only last Term, was, to be sure, not fully six-feet under: our decision in Lee v. Weisman conspicuously avoided using the supposed “test,” but also declined the invitation to repudiate it….

The secret of the Lemon test’s survival, I think, is that it is so easy to kill. It is there to scare us (and our audience) when we wish it to do so, but we can command it to return to the tomb at will.  When we wish to strike down a practice it forbids, we invoke it; when we wish to uphold a practice it forbids, we ignore it entirely. Such a docile and useful monster is worth keeping around, at least in a somnolent state; one never knows when one might need him.


READ Justice Scalia legacy on religion: A look at the last year of his life


4. Locke v. Davey (2004)

After the Court held that a state could deny a student a scholarship because of his major in “devotional theology,” Scalia penned a dissent that questioned the consistency of the majority’s ruling:

Let there be no doubt: This case is about discrimination against a religious minority. Most citizens of this country identify themselves as professing some religious belief, but the State’s policy poses no obstacle to practitioners of only a tepid, civic version of faith. Those the statutory exclusion actually affects–those whose belief in their religion is so strong that they dedicate their study and their lives to its ministry–are a far narrower set. One need not delve too far into modern popular culture to perceive a trendy disdain for deep religious conviction. In an era when the Court is so quick to come to the aid of other disfavored groups…its indifference in this case, which involves a form of discrimination to which the Constitution actually speaks, is exceptional.

5. Van Orden v. Perry (2005)

When the Court ruled that a display of the 10 Commandments in a Kentucky courtroom violated the Establishment Clause by endorsing a specific religious tradition, Scalia fired back in a dissenting opinion:

The three most popular religions in the United States, Christianity, Judaism, and Islam–which combined account for 97.7% of all believers–are monotheistic…. All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life. Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. Both practices are recognized across such a broad and diverse range of the population—from Christians to Muslims—that they cannot be reasonably understood as a government endorsement of a particular religious viewpoint.

Whether you agree or disagree with his positions, it is hard to deny Justice Scalia’s influence on the Court’s religion jurisprudence. And though the coming weeks and months will be dominated by the political and legal implications of his death, observers of religion in the United States should take a moment and reflect on what Scalia’s passing may mean for the future of religion and the law.

Daniel Bennett (@bennettdaniel) researches the conservative legal movement. He is a professor of political science at Eastern Kentucky University. 

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