At Saturday night’s Republican presidential debate, Ted Cruz claimed that the death of Supreme Court Justice Antonin Scalia had ratcheted up the stakes of the election because, in his words, “We are one justice away from a Supreme Court that would undermine the religious liberty of millions of Americans.” In fact, however, it was Scalia who did more to undermine religious liberty in America than any Supreme Court justice in history.
He did it by creating, and persuading four fellow justices to sign on to, an entirely new of way of interpreting the First Amendment’s Free Exercise clause. A quarter-century ago, in the majority opinion in Employment Division v. Smith, he established that the free exercise of religion could not be violated by “neutral” and “generally applicable” laws.
Smith involved two drug counsellors who were fired from their jobs because, in violation of a regulation against counsellors using drugs, they ingested peyote as members of the Native American Church. Because the regulation was neutral and generally applicable — i.e. it was not directed against a specific religious group or practice — they lost their case.
To be sure, Scalia did not claim to be against granting legal exceptions on religious grounds. “Values that are protected against government interference through enshrinement in the Bill of Rights are not thereby banished from the political process,” he wrote. “It is therefore not surprising that a number of States have made an exception to their drug laws for sacramental peyote use.”
The idea of subjecting a core constitutional right to the vagaries of politics appalled civil libertarians and religious bodies of all stripes, and in 1993 a nearly unanimous Congress passed the Religious Freedom Restoration Act (RFRA) to require the Supreme Court to revert to its prior standard of Free Exercise review. Under that standard, known as “strict scrutiny,” the government could substantially burden religious free exercise only if it had a “compelling interest” and did so by the “least restrictive means.”
In 1997, in Boerne v. Flores, the Court declared RFRA to be an unconstitutional restriction on its judicial powers, thereby marking the high water mark of Smith jurisprudence. Since then, the justices have in various ways sought to mitigate the impact of the decision without (in deference to Scalia) actually overturning it.
In 2005, they unanimously upheld the constitutionality of the Religious Land Use and Institutionalized Persons Act, which Congress had passed in 2000 to protect the religious activity of prisoners and to give religious institutions protection from burdensome zoning laws. In 2006, they unanimously upheld RFRA as it had been amended in 2003 to be a statutory condition imposed by Congress on federal (but not state) laws and regulations. And in 2012, they unanimously decided that anti-discrimination laws do not apply to religious organizations’ employment of “ministerial” employees.
In the meantime, many states set about enacting their own RFRA’s. Some were statutes, others were constitutional provisions, and there was no uniformity among them. And, as was dramatically demonstrated in Indiana last year in the wake of the Supreme Court’s same-sex marriage decision, the final determination often depended on who could bring the most political pressure to bear.
Handling religious liberty via the current politically fraught patchwork of federal and state laws is grotesque. While it’s not going to be easy to return to the status quo ante, the court can take a good first step this year in Zubik v. Burwell, the case dealing with the Affordable Care Act’s contraception accommodation for religious non-profits.
Now that Scalia is not around to defend it, the justices should declare Smith null and void and decide the case as a straight-up claim under the First Amendment. It’s time to make the free exercise of religion a full constitutional right again.