Next Supreme Court justice needs deeper devotion to religious freedom (COMMENTARY)

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Flowers are seen in front of the Supreme Court building in Washington D.C. after the death of U.S. Supreme Court Justice Antonin Scalia, February 14, 2016. REUTERS/Carlos Barria

Flowers are seen in front of the Supreme Court building in Washington D.C. after the death of U.S. Supreme Court Justice Antonin Scalia, February 14, 2016. REUTERS/Carlos Barria

My church friends are starting to scare me. (Disclaimer: I am both a Baptist minister and a constitutional lawyer with 15 years of experience representing evangelical and mainline Protestant churches.) 

Some Christians are starting to clamor for President Obama to refrain from appointing a replacement for Supreme Court Justice Antonin Scalia. Evangelical Ted Cruz has gone so far as to suggest that not only should the next Supreme Court justice be nominated by the next president (who he hopes will be (a) himself, or (b) at least a Republican), the senator has extolled Justice Scalia as a champion of religious freedom and a model for the type of justice the Senate should confirm.

That’s what scares me. They have it backwards, President Obama should act now and nominate someone with a deeper appreciation of religious freedom than Scalia showed in important cases.


READ: Religious broadcasters get a peek at Museum of the Bible collection


Here’s a quick primer in constitutional law for all of the faithful who believe that the road to the Kingdom of God is paved with Republican justices.

Scalia had the distinction of penning the most infamous religious freedom case of the last century: Employment Division v. SmithThe constitution’s Free Exercise (of religion) Clause had been interpreted by the Supreme Court for more than 35 years as protecting citizens’ religiously motivated conduct from government interference absent (1) a “compelling” interest such as health or safety, and (2) no less restrictive means of pursuing that interest. So even if the government had a compelling interest in teaching school children to read, schools might not be able to force a child to read a particular book.

That was the law until Scalia (and his Republican-appointed colleague Anthony Kennedy) finished with it. Describing the accommodation of religious exercise under the “compelling” interest test as a “luxury” the nation could not afford, Scalia’s opinion moved the nation’s first liberty to the back of the constitutional bus. Maybe off it altogether.

The results were immediate and profound. States were permitted to prohibit Native Americans from using peyote in their ancient religious rituals. Sikhs were forced to doff their turbans for hard hats at construction sites. The Supreme Court vacated a Minnesota decision extending First Amendment protection to Amish farmers forced off the highways for refusing to affix large warning signs (“worldly symbols” to the Amish) to their buggies despite evidence that that their more modest silver reflector tape was equally effective. It was, in short, open season on religious freedom in America. If Obamacare’s contraceptive mandate had been in effect, neither Hobby Lobby — nor anyone else — would have stood a chance challenging it in court.


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But government “by the people and for the people” still works, or at least it did in the 1990s. A coalition of more than 60 national organizations rose up to rescue the nation’s first liberty. From the ACLU to Pat Robertson’s ACLJ. From Norman Lear’s People for the American Way to Beverly LaHaye’s Concerned Women for America. Jews and evangelicals, Buddhists and Baha’is put aside their religious and political differences to unite around a fundamental American principle: religious freedom for all.

Corrective legislation, championed by Democratic Sen. Ted Kennedy and Republican Sen. Orrin Hatch, passed both chambers of Congress with only three dissenting votes and was signed into law by President Bill Clinton. Republican Newt Gingrich and Democrat Barney Frank were co-sponsors of the House bill.

But even that isn’t the end of the story. Four years later when the new legislation was used by an archbishop in Boerne, Texas, to challenge the local government’s refusal to let one of his churches expand the size of its worship space to accommodate their burgeoning congregation, Scalia joined Kennedy in denying the bishop relief. Worse still, Scalia and Kennedy decided that the new law did not even apply to state and local governments.

There’s a certain irony here. We tend to assume that Republican judges will be friendlier to religious freedom than their Democratic counterparts. The lessons of the last 26 years suggest otherwise.     

(Oliver Thomas is a Baptist minister, author, educator and lawyer. This commentary first appeared in USA Today)

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  • Oliver Thomas is spot on. President Obama needs to appoint a new justice at once, one who will support religious freedom and church-state separation. Justice Scalia was one of the worst justices ever to serve on the SCOTUS. He opposed religious liberty and women’s rights of conscience and supported the diversion of public funds to religious institutions, thumbing his nose at the constitutional heritage of Madison and Jefferson. — Edd Doerr, President, Americans for Religious Liberty (arlinc.org)

  • Enjoyed the article Mr. Thomas. The Amish sign caught my attention. A few years back I asked an Amish buggy driver a question. I wanted to know how a “worldly symbol” was defined. Never got an answer that made sense. That started me on a journey about what people believe. Like why was it a Muslim rule that women cover their hair? Jordans women have no such rule. Even asked my bubba why we walked to service. LOL didn’t get anything except it was a custom NOT to drive. Oh well, when ever I see an overt symbol of faith I’ll be asking..

  • yoh

    The article subtly notices the hypocrisy of conservative notions of religious freedom. When it comes to ultra conservative/reactionary Christian sects, conservatives like Scalia gave them a ridiculously wide berth. Especially to the point of permitting official sectarian discrimination and attacks on the rights of others.

    When it came to minority sects, suddenly their actions have to be justified in an extreme fashion against laws of general application.

    The fallout from Smith is not as bad as the legislation which was supposed to remedy it, the RFRA. Instead of protecting rights of minority faiths, it gives religious majorities tools for attacking others. Smith was a decent decision, but it was too bad it’s proponents never expected it to be applied to their own faith.

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  • David Lloyd-Jones

    I’ve met dozens of Scalia’s sort in my life: he was your Roman Catholic fratboy with two beers too many in him. Friendly, opinionated, reactionary, and as narrow as a rail. A lovely guy to have on your side, and no reasoning with him if he’s not.

    I wish him well wherever he is now, but I wish people would see that his act here had nothing whatsoever to do with justice.

    -dlj.

  • The next Supreme Court Justice should be an Atheist.

    Religion is a nuisance. The rise of Right Wing Christianity has gone far enough.
    The rights of religious people are well protected by our Constitution – let’s leave it at that.

    Rather than focus on the needs of the religious, which are currently more than satisfied with 22,000 broadcasting stations and TV channels – we need to give some respect to Church State Separation.

    Non-believers need to begin to speak even more loudly. God is a private matter people who insist on surrendering to it – – get it out of our laws.

  • George Nixon Shuler

    I disagree with the writer: in some of these decisions, Scalia was right. The one about Boerne was one in particular. Note recently the Pastafarians (followers of the Flying Spaghetti Monster) have successfully challenged driver’s license issuing agencies to allow their driver’s license photo to be one of them with a colander on their heads. That is their legal right, but the right to defy historic preservation and zoning on the basis of religion is hardly significant. Yoder v. Wisconsin established the right of Amish to homeschool, and millions of kids are suffering from this right and growing up to be idiots. If you wonder why Donald Trump’s doing so well in the primaries, it’s because the right wing attack on public education commenced some forty years ago and it is the fruit of this idiocracy.