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How Justice Scalia ruled on religious freedom — and why it matters

SHARE How Justice Scalia ruled on religious freedom — and why it matters
Retiring Chief Justice Warren Burger, right, administers an oath to Associate Justice Antonin Scalia, as Scalia's wife Maureen holds the bible during ceremonies in the East Room of White House, Washington on Friday, Sept. 26, 1986. Scalia is the 103rd per

Retiring Chief Justice Warren Burger, right, administers an oath to Associate Justice Antonin Scalia, as Scalia’s wife Maureen holds the bible during ceremonies in the East Room of White House, Washington on Friday, Sept. 26, 1986. Scalia is the 103rd person to sit on the court. (AP Photo/Charles Tasnadi)

Charles Tasnadi, AP

Advocates for religious freedom agree that the late Supreme Court Justice Antonin Scalia forever changed America's approach to protecting the rights of faith groups.

But whether it was for better or for worse is still up for debate and could play into how freedom of conscience will fare before the future court.

"The absence of Scalia makes it more likely that religious claimants will lose, and that's significant," said Richard Garnett, a professor at Notre Dame Law School, who believed Scalia's respect for religious freedom was present throughout his 30-year Supreme Court career.

But Charles Haynes, vice president of the Newseum Institute and Religious Freedom Center in Washington, D.C., has a different view on Scalia's legacy.

Scalia "did the most to limit religious freedom of any justice in history," he said.

In death, as in life, Scalia remains a polarizing figure. His religious freedom legacy looks very different depending on how one interprets his famously fiery arguments and which cases one highlights, according to Garnett, Haynes and other legal experts.

Time will tell how his life's work and the timing of his death will affect religious liberty jurisprudence, they said, but an immediate impact may be felt in a major religious exercise case pending before the remaining eight justices.

Free exercise

The case people most often mentioned by scholars reviewing Scalia's religious freedom legacy came 25 years ago, when Scalia delivered the majority opinion in Employment Division v. Smith and blew up how courts had been handling religious exercise disputes for nearly three decades.

In the case, two members of the Native American church in Oregon argued that a state law banning peyote use violated the First Amendment's guarantee of the freedom to exercise one's religion. They both had been fired for ingesting peyote, an illegal drug, and denied unemployment benefits.

Scalia wrote that Oregon had the right make peyote use a crime because the state did so through a generally applicable law, not in a ban targeting just the Native American community. He criticized the court's practice of employing a "compelling interest test" in cases of this nature, arguing that judges should not be given the power to decide when and if a generally applicable law places a significant burden on a faith group.

The ruling disrupted the status quo in place since the early 1960s, which had prevented states from denying requests for religious exemptions unless lawmakers could prove government's compelling interest in infringing on a religious group's First Amendment right to practice its faith.

Scalia's opinion sent shock waves through faith communities, and "more than 60 religious and civil liberties groups — from the ACLU to the National Association of Evangelicals — joined together to "restore" the compelling interest test by getting Congress to pass the Religious Freedom Restoration Act of 1993," Haynes wrote in a post on Scalia's legacy.

Haynes believes that Scalia's opinion permanently weakened the Constitution's free exercise clause, making it nearly impossible for people of faith to use it to argue against laws that stood in the way of their religious practices.

"That's the most important religious freedom legacy of Justice Scalia," Haynes said.

However, Garnett offered a different interpretation of Employment Division v. Smith, noting that Scalia's work on the case wasn't a disservice to religious freedom, but merely shifted to the legislative branch of government the duty of balancing its interest against that First Amendment right to religious practice.

"I think people often badly misunderstand what happened in that case. … (Scalia) wasn't against accommodations for religious believers. He thought they should be designed by legislatures and not judges," Garnett said.

Doug Laycock, a distinguished professor of law and professor of religious studies at the University of Virginia and a lead player in helping draft RFRA, occupies a middle ground between Haynes' and Garnett's viewpoints, describing Scalia's work on the case as both a blow to religious freedom advocacy in the early 1990s, but also an impetus for the heightened protections the U.S. has today.

"Smith has had real consequences that, on the whole, have been bad for religious liberty. But not as bad as people feared at the time. And the growth of statutory protection has probably been good for religious liberty," Laycock wrote in an email.

Scalia was supportive of the protections guaranteed by RFRA. Most recently, he joined the majority in the 2014 landmark case Burwell v. Hobby Lobby, that found RFRA protected closely held corporations whose owners claimed the Affordable Care Act's contraception mandate violated their religious beliefs against certain types of birth control. The Supreme Court ruled that the Affordable Care Act violated Hobby Lobby's right to a religious exemption under RFRA

Although many reflections on Scalia's work have described this path from Employment Division v. Smith to Burwell v. Hobby Lobby as an example of how the justice's views on religious freedom evolved, Garnett said the two decisions can't be compared as equals. The 2014 case hinged upon RFRA, not the free exercise clause.

In the Hobby Lobby case, "he does precisely the kind of balancing that in Smith he said we don't want to do. But I think it makes an important difference to him if you're doing the balancing because Congress told you to do it," he said.

Establishment clause

Scalia's rulings on the other type of religious freedom guaranteed by the First Amendment — protection against a state established faith — were less complex. Throughout his time on the Supreme Court, he consistently supported public displays of religion on government property or state-sponsored events, legal experts said.

"In his view, the establishment clause means that the government can't set up an official church or coerce people to support a particular church or to participate in religious activities," Garnett said. "He didn't think it meant that religion has to stay in private."

Scalia was what legal scholars call an accommodationist. In his view, the Constitution demanded government neutrality among religions, not neutrality between religion and nonreligion, Haynes noted.

In cases such as Lee v. Weisman, in which the Supreme Court ruled against a school that invited local clergy members to provide a prayer during graduation, Scalia argued vehemently against justices in the separationist camp who held that the Constitution does not allow the government to mix with religion at any level.

"He thought that was nonsense," Haynes said, noting that to Scalia offering a prayer or displaying a copy of the Ten Commandments in a courthouse was simply honoring God, which he thought American society should do.

Over the past decade, the Supreme Court has gradually adopted a more accommodationist viewpoint, Haynes noted. For example, justices ruled 5-4 in favor of the town of Greece in 2014, with the majority arguing that inviting residents to provide prayers at the start of town council meetings was legal, even if most people who volunteered were Christian.

"I think that's the clearest recent example of Scalia's view beginning to win the day," Haynes said, noting that this shift has likely occurred both as a result of Scalia's influence and those of the newest justices appointed to the court.

Without Scalia

Scalia's death will disrupt another major religious freedom case before the Supreme Court this spring — the latest challenge to the Affordable Care Act's contraception mandate by religious nonprofits.

A group of seven faith-based nonprofits, including an order of Catholic nuns, has challenged the administration's accommodation that allows faith groups to avoid directly providing contraception. They claim that, even with the attempted accommodation, the ACA accommodation still requires them to violate their religious beliefs.

Without Scalia, the outcome is expected to be either a 4-4 tie or a 5-3 loss, as Deseret News National reported last week.

In the near future, Scalia's death will make it more likely that a religious group will lose an RFRA-related challenge, according to Garnett.

It may also lead the Supreme Court to swing back to a more separationist view of the establishment clause, depending on who is appointed as Scalia's successor, Haynes noted.

However, reflecting on Scalia's religious freedom legacy requires acknowledging that, with the exception of his 1990 Smith opinion, he mostly joined majority opinions or penned scathing dissents, said Daniel Bennett, an assistant professor of government at Eastern Kentucky University. Rarely did Scalia's writing or reasoning drive Supreme Court rulings.

Scalia "was entertaining to read and certainly influenced a generation or more of conservative lawyers. But when it comes down to it, his impact on the court was always going to be less in terms of moving jurisprudence and more in terms of passionate dissents," he said. "He issued fiery opinions without really moving the needle of public opinion."

Although Scalia's death may be unsettling for advocates of religious freedom, people shouldn't forget the many other legal scholars who will continue working to shape religious liberty legislation across the country, Bennett added.

"There are a number of legal thinkers who aren't on the Supreme Court, like Doug Laycock or Robbie George, who promote" deep understanding of religious freedom law and influence legislation, he said.

Email: kdallas@deseretnews.com, Twitter: @kelsey_dallas