April 24, 2016

Originalism and Justice Scalia, Part 2

 Religious Liberty and the Establishment and Free Exercise Clauses of the First Amendment

In my last post on this subject, I made the argument that Justice Scalia’s judicial philosophy of “originalism” was actually a method that allowed him, almost without exception, to reach the politically conservative outcome in any particular case, regardless of the precedent (or lack thereof) for that outcome.  This case is strengthened when we look at how Scalia voted in the First Amendment religion cases that came before the Supreme Court.

Of course, Scalia himself strove to define himself in the public as an intellectual, nobly applying legal principles regardless of the outcome that said principles might reach.  And he snowed an awful lot of people; here’s how Emma Green, writing for the Atlantic, put it:

[Scalia’s] Roman Catholic faith often seemed to lurk in the background of his opinions, especially in cases involving abortion and homosexuality. But above all, he was committed to a literal, originalist interpretation of the Constitution, along with strict attention to the texts of federal and state laws. His views didn’t always align with those of the Church, and he didn’t always side with people making religious-freedom claims. …  Scalia’s legacy on religious and social issues is complicated—in defiance of his reputation as the Court’s most stalwart conservative Catholic.

This is a perfect example of exactly what I’m trying to debunk in these blog posts.  Let me be clear:  there is nothing ‘complicated’ about how Antonin Scalia ruled in religion cases.  He simply ruled in favor of whatever position the Christian Right would take.  Every.  Single.  Time.

So why are Ms. Green and so many others confused about Scalia’s jurisprudence on religious issues?  I think it’s because we lump together two very different kinds of cases under what we call “religious liberty” or “religion cases.”  The First Amendment to the Constitution has two clauses that pertain to religion; it says “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”  That first clause is the Establishment Clause, the principle that gives rise to the idea of the separation of church and state.  The second is the Free Exercise Clause, and it serves mostly to protect minority religious belief from being regulated and discouraged by law.  Articles like Green’s lump together both Establishment Clause cases andFree Exercise cases, and express puzzlement that sometimes Scalia voted in favor of government restrictions on religious liberty and sometimes against it.  It seems “complicated.”

It isn’t — but only when you understand how Establishment Clause cases and Free Exercise cases tend to be brought in this country.  Because Christians are the overwhelming majority of the population, Establishment Clause cases are virtually all brought by individuals challenging laws passed by the majority that give state support to Christianity:  public funds to private Christian schools, tax breaks for Christian literature, school-sponsored Christian prayers, that sort of stuff.  On the other hand, Free Exercise cases tend to be brought by members of religious minoritieswhose religious practices run afoul of laws passed by the majority.

In Establishment Clause cases, Scalia consistently ruled in favor of the government.  Here, let’s quote from Scalia himself in Lee v. Wiseman, 505 U.S. 577 (1992), in which Scalia dissented from the Supreme Court’s 5-4 majority striking down adult-led Christian prayers at public high school graduations:

The Establishment Clause must be construed in light of the government policies of accommodation, acknowledgment, and support for religion that are an accepted part of our political and cultural heritage.

Id. at 631 (emphasis added).

This “support for religion” led Scalia to vote in favor of every state scheme to support religion in literally every Establishment Clause case before him.  So in addition to his dissent in Wiseman, Scalia also dissented in Edwards v. Aguillard, 428 U.S. 578 (1987), in which the Supreme Court struck down the Louisiana law requiring teaching Christian creationism in public schools.  He dissented in Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000), which struck down school-sponsored (but student-led) Christian prayers before each football game.  And he dissented in McCreary County, Kentucky v. ACLU, 545 U.S. 844 (2005), which struck down the placement of “large, gold-framed copies of an abridged text of the King James version of the Ten Commandments, including a citation to the Book of Exodus” that were hung in two courthouses in Kentucky.  More perniciously, as the Court became more conservative during Scalia’s tenure, those dissents became majority opinions.  Scalia thus voted with the 5-4 majority in Rosenberger v. University of Virginia, 515 U.S. 819 (1995), which upheld the use of public funds to distribute Wide Awake, a self-described “Christian Perspective Literary Magazine.”  He also voted with the majority in Agostini v. Felton, 521 U.S. 203 (1997), upholding the use of public Title I funds to provide educational services at private, religious schools, explicitly overturning a prior Supreme Court case on the exact same law decided just 12 years previously.  In Zelman v. Simmons-Harris, 536 U.S. 639 (2002), Scalia again voted with the 5-4 majority to approve the use of public funds in the form of $2,250 “vouchers” to subsidize tuition at religious schools.  Finally, in Town of Greece v. Galloway, 572 U.S. ___, 134 S.Ct. 1811  (2014), Scalia voted with yet another 5-4 majority to uphold the practice of the town of Greece, New York beginning its monthly board meetings with a Christian prayer.

In every case, Scalia sided with the imposition of governmental laws and regulations designed to promote a belief in, and/or to provide financial support to, Christianity.  This is not complicated.  Confusion over Scalia’s view of “religious liberty” arises from the fact that Scalia’s belief in a cultural “support for religion” influencing how cases are to be decided ended the moment that the religion in question was somebody else’s non-Christian religion.

Scalia’s most notorious Free Exercise case is Employment Division v. Smith, 494 U.S. 872 (1990).  Here’s a brief summary:  Oregon had (and still has) a state law criminalizing, among other things, the possession and use of peyote.  Two Native American spiritualists, who believed that ingesting peyote during religious servies was an important part of their religious heritage for hundreds of years, were fired from their jobs for doing so (during off-hours), and then denied unemployment benefits.  They sued, and the Oregon Supreme Court determined that the denial of unemployment benefits violated the Native Americans’ Free Exercise rights under the First Amendment.  This kind of minor accommodation and exception to generally-applicable laws was commonplace in our constitutional history; see, e.g., Sherbert v. Verner, 374 U.S. 398 (1963).

It should not shock you at this point to find out that when it came to those weird, minority, peyote-ingesting religions, Scalia’s supposed respect for accommodation and support for religion went out the window.  Of course Scalia voted to reverse and wrote the majority opinion.  However, you may still be slightly surprised by just how far Scalia went; in overturning long-standing Supreme Court precedent, Scalia held that the Free Exercise clause does not entitle any religious adherent to any accommodation or exception from any “generally applicable law.”  Id. at 878-89.  Instead, under Scalia’s view, the Free Exercise clause only protects individuals from state laws that explicitly target religious beliefs and practices.  As Scalia put it, “It would doubtless be unconstitutional, for example, to ban the casting of statues that are to be used for worship purposes, or to prohibit bowing down before a golden calf.”  Id. at 877-78.

In other words, as a result of Scalia’s decision in Smith, you have no Constitutional Free Exercise claim if a law is neutral, no matter how much that law might actually burden your religion; the only thing that actually violates the Free Exercise Clause is if a legislature says, “we’re passing this law specifically to target your religion.”  (Shockingly, this actually did happen a few years later, in Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993), in which the city of Hialeah, Florida banned the practice of chicken sacrifice specifically because followers of Santeria do it, and it seems kind of gross.  And as you might suspect, once that ordinance was struck down, the city of Hialeah, Florida, just rewrote it as a “public health” ordinance and it still stands today.)

And that’s it.  There are no other Free Exercise Clause cases under Scalia, because Smithessentially gutted the entirety of the First Amendment protections available to petitioners under the Free Exercise Clause.  Oh, and Smith directly led to the passage of state Religious Freedom Restoration Acts (RFRA) – but that will have to be discussed in a future post.  Although I bet you can guess how Scalia ruled in those cases.  It’s not complicated.

April 24, 2016 Blog