Correcting Scalia's Biggest Mistake | Opinion

Justice Antonin Scalia was a legal maestro. But maestros are human. And humans make mistakes. This Wednesday, with arguments in Fulton v. City of Philadelphia, the Supreme Court can begin to correct what is arguably Scalia's biggest mistake: Employment Division v. Smith.

In Smith, writing for the Court, Scalia rejected the religious liberty claims of two Native Americans. They had been fired from their jobs for using peyote—a hallucinogenic drug—during a Native American Church service. More significantly, Scalia essentially wrote that when a law is neutral and generally applicable, religious liberty must give way.

Otherwise, he feared anarchy would result. And he worried about giving judges too much discretion to balance religious liberty claims with governmental interests. Instead, Justice Scalia declared that religious liberty could be protected by majorities through elected leaders. Ironically, as the intellectual godfather of modern originalism, the justice did not look to the Free Exercise Clause's original public meaning in his analysis.

Smith drastically altered the Court's free exercise jurisprudence, leaving religious liberty weakened. In fact, a unanimous House of Representatives and a nearly unanimous Senate, with President Bill Clinton's signature, soon passed the Religious Freedom Restoration Act (RFRA) to reverse the damage.

Smith has been disastrous for religious liberty, particularly for religious minorities. After 30 years, it is time to end the failed Smith experiment. But what should take its place? Channeling Scalia, the Court should look to the Free Exercise Clause's original public meaning, much like it primarily performs a historical analysis for the clause's First Amendment cousin, the Establishment Clause.

So what is the Free Exercise Clause's original public meaning? There is some debate. Seven years after Smith, in City of Boerne v. Flores, which invalidated RFRA's application to the states, Scalia attempted a post-hoc originalist justification for Smith. That position sees the clause as narrow, but deep. The clause's language—"Congress shall make no law...prohibiting the free exercise [of religion]"—meant simply that any law directly or explicitly outlawing religious activity was unconstitutional. By contrast, a law with the same effect indirectly raised no constitutional problems. So Congress could not prohibit Catholic mass, for example, but could prohibit gatherings generally.

A second view, espoused by Justice Sandra Day O'Connor in Boerne, was both broader and shallower than Scalia's position. Whenever a law infringed upon religious liberty, even indirectly, courts balanced that infringement against the government's interest protected by the law. From this perspective, even a law not directed at religious activity might violate the Constitution; weighty government interests would trump religious liberty, but lesser interests would bow before free exercise.

Both positions have serious shortcomings in light of the Free Exercise Clause's text and historical context, and both rely on less relevant historical evidence. For instance, the Scalia view adds "directly" or "explicitly" to the text. Yet Congress can just as much prohibit religious liberty by generally making something illegal that is free exercise for some portion of the population as it can by directly targeting free exercise. After all, a law prohibiting the wearing of headgear would not just prohibit baseball caps, but also yarmulkes, turbans and hijabs. Likewise, the O'Connor view adds a proviso along the lines of, "...unless religious free exercise threatens public health, safety, morals or other weighty government interests." That too is nowhere in the actual text of the First Amendment.

Both views also clash with the historical context, but in different ways. Scalia's position is flatly inconsistent with the preeminence the Founding generation placed on religious liberty. Thomas Jefferson referred to religious liberty as "[t]he most inalienable and sacred of all human rights." James Madison referred to "[c]onscience [a]s the most sacred of all property," observing that the "duty towards the precedent both in order of time and in degree of obligation to the claims of Civil Society." As Professor John Witte has observed, "[v]irtually all [18th-]century writers embraced religious liberty as the 'first liberty' and the 'first freedom.'" This nearly universal view is incompatible with Scalia's position that prevailed in Smith.

O'Connor's reading flouts a different historical context. In debates over ratifying the Constitution, the Federalists repeatedly promised the Anti-Federalists that the federal government was only one of limited, enumerated powers. And in arguing against the need for a Bill of Rights, the Federalists contended that the federal government had no authority such that it could infringe religious liberty. Yet the O'Connor view asserts that when it is important enough, government can prohibit free exercise. This is incompatible with the original understanding of the federal government and its reach.

The late Justice Antonin Scalia
The late Justice Antonin Scalia CNP/Getty Images

Finally, both the Scalia and the O'Connor positions, while interpreting the evidence differently, rely primarily on Founding-era state constitutional provisions protecting religious liberty. These provisions would often guarantee religious free exercise if it did not interfere with public peace, safety, health or morals. Yet state constitutions are not the most relevant evidence to understanding the U.S. Constitution's Free Exercise Clause.

Instead, we should consider the proposed amendments to the U.S. Constitution that emerged from the various state ratifying conventions. Significantly, the very states that included provisos in their state constitutions permitting the limitation of religious liberty in the face of important public interests refused to include such provisos in proposed amendments to the U.S. Constitution. Instead, the states almost uniformly proposed amendments that were absolute in their protections, just like the language eventually adopted as the Free Exercise Clause (Madison had these proposals before him when he authored the first draft of what became the Free Exercise Clause). And this makes sense. Under our Constitution, state (and local) governments retain the police power—the authority to regulate health, safety and morals.

The federal government was not given a broad-ranging police power. So states would want to retain the ability to limit religious liberty when it posed a threat to these other important considerations. But the Anti-Federalists, taking the Federalists at their word, did not want to recognize that the federal government could ever exercise this power. So protection of religious liberty against federal intrusion had to be absolute. In short, the scope of religious liberty vis-à-vis the government depended on the type of government.

If the Scalia and O'Connor views are wrong, then what is the Free Exercise Clause's original public meaning? As I and others have argued, there is a third originalist understanding that comports with the text and historical context, and relies on the most relevant evidence. That view is both broad and deep. Congress cannot prohibit religious free exercise in any way, whether directly or indirectly. Full stop. That is what the text says. And that original public meaning is consistent both with the preeminence of religious liberty at the Founding, as well as the understanding of the federal government's limited power. Finally, that reading is in harmony with the most relevant evidence—the proposed amendments to the Constitution by the states, as opposed to looking to state constitutional language dealing with a completely different type of government.

Does that mean that, at the Founding, someone could kill or steal or injure in the name of religion? No, but not because the federal government could infringe free exercise. Rather, such matters would have been handled at the state and local level.

Admittedly, this original understanding is perhaps strong medicine, given subsequent developments long after the adoption of the First Amendment. First, the 1868 enactment of the 14th Amendment applied the Free Exercise Clause to the states (something the First Congress considered doing, at Madison's urging, and rejected). Second, the metastasizing administrative state injects the federal government's reach far beyond its original limited, enumerated powers, creating clashes with religious liberty that never could have existed in 1789.

Given this, there may not be five votes on the Court to return to the Free Exercise Clause's correct original meaning. Alternatively, then, the Court can remove Smith from its free exercise jurisprudence, leaving the two-tiered doctrinal structure in place that pre-existed Smith and has been reinforced since. First, some government actions and laws are categorially prohibited by the Free Exercise Clause—government may not interfere with a religious organization's selection or control of its "ministers," nor may it "impose religious tests on its citizens," nor may it directly or indirectly "persecute or oppress a religion or its practices." There is no balancing of government interests here. Otherwise, religious liberty claims are governed by the Court's strict scrutiny test: Whenever the government burdens the sincere exercise of religion, it can only do so if it has a compelling interest pursued through the narrowest way possible. This two-tiered jurisprudence may not provide as much protection as the original public meaning would provide, but it is a significant improvement over Smith at a time when hostility to religion has reached an all-time high.

As for Scalia, there is no disrespect in banishing Smith to the Court's proverbial dustbin. Sometimes the greatest compliment a devotee can pay a maestro is applying that maestro's teachings to correct his biggest mistake.

James Phillips is an assistant professor of law at Chapman University's Fowler School of Law.

The views expressed in this article are the writer's own.