Much has been said in recent days about the extraordinary jurisprudential influence of the late Justice Antonin Scalia. His persuasive obsession with the original meaning of our Constitution and the plain meaning of the written law brought a much-needed corrective to those schools of jurisprudence that had become as responsive to sociology as they were to the legislation produced by the democratic branches of government.
And although many a formidable judicial and intellectual opponent disagreed with him profoundly, it was almost impossible for them to disrespect him. He was acknowledged as a brilliant legal mind by both ideological friends and foes. His close personal friendship with Justice Ruth Bader Ginsburg, a judge with whom he frequently disagreed on the major social issues of our day, should serve as inspiration to a divided nation; it modeled the capacity to recognize the dignity of those who hold different social and political points of view.
So it is with the utmost respect that we note one of Scalia’s most enduring, but troubling, legacies. On April 17, 1990, Scalia issued the majority opinion in the case of Employment Division v. Smith, which determined that rights to the free exercise of religion do not negate the requirement of all citizens to obey "neutral law[s] of general applicability." In that particular case, the use of peyote by Native Americans was not, according to Scalia, exempt from legal sanction just because it was done as part of a religious ceremony.
Scalia’s reasoning was clear, compelling and forthright, yet his principled change to constitutional precedent has had a deleterious effect on religious liberties in the ensuing two and a half decades. Perhaps it was because he abhorred the vagaries associated with the balancing test that had come to define the way the free exercise of religion was judicially protected. But ever since the Smith decision, those seeking protection for the exercise of religious practices outside of the societal mainstream — the very persons that should be protected by the First Amendment’s free exercise clause — now have the burden of seeking legislative rather than judicial protection for religious practices that might be regulated through generally applicable statutes. This has had the effect of making religious freedom secondary to other basic First Amendment rights.
The ensuing drama over the Religious Freedom Restoration Act (a direct legislative rebuke of Scalia’s decision) and RFRA’s interpretation have taken center stage in the ensuing religious liberty debates. Those are debates that should have been handled through the normal dispute resolution process of the judiciary under a standard of strict scrutiny. Instead, such debates have become politicized and polarized.
It may seem ungenerous to remember the late Justice Scalia by focusing on an opinion of his with consequences we find disturbing. But it was completely consonant with his judicial philosophy that honored the political branches of government and downplayed the judiciary. Scalia himself did not see his role, or the role of the court to which he gave his service, as one of only upholding laws with which he personally agreed. He once observed that a "judge who always like the results he reaches is a bad judge." Personal preferences were irrelevant; what was essential to Scalia was upholding the rule of law.
He famously observed that a "law can be both economic folly and constitutional," and that the court does not have the authority to act as a second legislature to correct Congress's mistakes. That approach could occasionally produce results that were unpopular or even counterproductive, but it’s a principled approach that forced his colleagues to articulate with precision the precise boundaries between the branches of government in constitutional governance. It was an exacting and sometimes exasperating jurisprudence, but the republic is largely better because of the rigorous dialog it demanded.