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When I ask many of my conservative friends, “Who did more to harm religious liberty in the 20th Century, Justice Scalia or President Clinton,” they invariably smile and say, “President Clinton, of course!” They could not be more incorrect – President Clinton was an ardent supporter of religious liberty and Justice Scalia restricted religious liberty in profound ways. In an act of judicial activism, Justice Scalia ignored existing constitutional precedent in authoring a decision that did more harm to religious liberty than any other case decided during the twentieth century.
Indeed, one must go back to cases involving the Church of Jesus Christ of Latter-day Saints and the practice of polygamy, decided in the late nineteenth century, to find another instance of the Supreme Court blatantly limiting the free exercise right contained in the First Amendment. President Clinton, on the other hand, with near-unanimous support in Congress, sought to restore the religious liberty lost, due to Justice Scalia’s surprising decision. This is a historical tale worth telling because a happy ending may be in sight.
In 1990, Justice Scalia wrote a tragic majority opinion in the Employment Division v. Smith (Smith) case, in which the Court, with a razor thin 5-4 majority, held that government may regulate the free exercise of one’s religion, so long as it does so in a neutral and generally applicable or indirect manner. In a decision that surprised scholars and Court-watchers alike, Scalia and the Court overruled existing precedent that protected religious liberty through what has been referred to as the compelling interest test.
That test, which had been used in prior Supreme Court decisions, required that government prove that it had a compelling government interest in the policy it was pursuing and that the legislation was narrowly tailored to achieve that interest, before it could directly or indirectly regulate the free exercise of religion. Scalia accepted that the First Amendment prevented government from intentionally discriminating against religion, but he asserted that federal and state governments were permitted to regulate religion in an indirect manner. Thus, if the government passes general legislation to further a general government policy, the fact that the legislation impacts religious liberty in serious ways is immaterial.
Of late, this has given rise to the conflict between general anti-discrimination laws and religious liberty. Thus, for example, under Scalia’s far-reaching decision, if the government decides it is wise policy to make discrimination based on sexual orientation in education unlawful, the government may force education institutions, public and private alike, to comply with that general law even if it violates their right of religious conscience. Under pre-Smith precedent, the government generally was required to provide exemptions from general laws for sincerely held religious beliefs. But, Justice Scalia and four other Justices changed all of that.
In response to Justice Scalia’s wide-ranging decision, President Clinton’s urged Congress to pass the Religious Freedom Restoration Act (RFRA), in response to testimony and lobbying from major religious groups, including the Church of Jesus Christ of Latter-day Saints. In fact, this may have been the only occasion in my lifetime when the Council of the First Presidency and the Quorum of Twelve Apostles, directed one of their members, Elder Dallin H. Oaks, to testify officially on behalf of the LDS Church.
Congress, the Senate and the House, passed RFRA with only a handful of opposing votes. The passage of RFRA essentially reinstated the compelling state interest test that had previously protected religious liberty against indirect governmental action. Proponents of religious liberty were relieved, but that relief proved to be momentary. In 1997 in City of Boerne v. Flores, with Justice Kennedy writing for another slim 5-4 majority, including Justice Scalia, the Court held that Congress lacked the power to pass RFRA, an act that limited the power of states to indirectly regulate religious liberty.
Since the decisions in those two momentous cases, religious liberty has suffered greatly. Now, however, is a time when religious freedom can truly be restored. If five Justices vote to overrule Smith, religious liberty may not be limited unless government proves that it has a compelling and narrowly tailored state interest. The result, in virtually all cases, would be that government would be required to exempt religious believers and churches from general laws that violated their right of free exercise.
You might ask, “Shouldn’t the Court be required to abide by the precedent in the Smith case?” Failing to abide by precedent places the constitutional rule of law in jeopardy, the very issue being raised in the abortion context. The Smith (religious liberty) and Roe v. Wade (abortion) precedents differ in a significant way, however. The abortion precedent is much stronger than the Smith precedent. The abortion precedent has been reaffirmed approximately twenty times, whereas the Smith precedent is isolated and ripe for overruling, because it has never been directly challenged and has not been regularly reaffirmed.
The task is not an easy one, however. When Smith was decided, the liberal wing of the Court supported religious liberty while conservative justices, led by Justice Scalia, did not. Today, the liberal wing is less disposed to protect religious liberty. The conservatives, however, may at last have come to their senses and may be willing to provide robust protection for the right of religious conscience, which James Madison, the primary architect of the First Amendment, declared to be the “most sacred of all property,” an inalienable right that could not bear the slightest touch of the hand of government.
With a fifth conservative justice who recognizes religious liberty as an inalienable right – a right given of God that is largely beyond the reach of government – we might, at last, be able to correct Justice Scalia’s most grievous mistake and restore religious liberty in the robust form intended by the framers of the First and Fourteenth Amendments. Now, that would be a happy ending.
Rodney K. Smith is a constitutional scholar, who directs the Center for Constitutional Studies at Utah Valley University. His book, JAMES MADISON: The Father of Religious Liberty, is forthcoming.