Over the past hundred years few judges have been able to match the wit, wisdom, and intellectual rigor of Supreme Court Justice Antonin Scalia. During his thirty year career he has been an indefatigable champion of originalism (a principle of interpretation that views the Constitution’s meaning as fixed as of the time of enactment) and a vociferous critic of the slippery “living constitution” school of jurisprudence. When future historians assess his career Scalia will be viewed as one of the most thoughtful, principled, and important jurists of his era.
But even a legal genius can produce a disastrous opinion, and Scalia delivered his worst twenty-five years ago this week in Employment Division v. Smith. As Michael Stokes Paulsen explains, this ruling has “proven to be one of the most devastatingly long-term harmful Supreme Court constitutional decisions of the past half century.”
In a nutshell, Smith held that the First Amendment’s protection of the right to the “free exercise” of religion does not confer a substantive freedom shielding religious faith from laws and regulations that impair its free exercise. Rather, the Court held, the Free Exercise Clause permits governments to enact laws that restrict the exercise of sincere religious conviction. They just can’t be explicit about it. Such laws must be “neutral” on their face—meaning that they apply to non-religious conduct as well as religious conduct. If a law merely has the effect of preventing or banning the exercise of religion, that is not a constitutional problem under the Free Exercise Clause, according to Smith.
Smith produces a strangely ironic reading of the Free Exercise Clause. According to this view of the Constitution’s protection of the “free exercise” of “religion,” there is nothing constitutionally special about the free exercise of religion. Religion is just one other thing that might get in the way of government’s ordinary powers, no different in kind from any other set of beliefs or preferences that might be opposed to government policy. The right to the free exercise of religion is not a substantive freedom. It confers no constitutional immunity from government interference. The Free Exercise Clause is merely a non-discrimination rule. Government may not set out to target, or discriminate against, religious conduct because it is religious conduct. But if government’s primary aim is some general policy, the fact that government incidentally hits religious conduct presents no special constitutional problem.
