Source: Religion and Politics

As efforts are made to assess the legacy of Justice Antonin Scalia, who died last month, pundits have avoided discussing the one decision that stands as the biggest enigma in his corpus of largely conservative judicial decisions: Employment Division v. Smith, the historic case that repudiated the existence of a free exercise right to religious accommodation. Today, religious accommodation is championed by religious conservatives, who usually counted Justice Scalia as a friend, but remain mystified by what they perceive as his betrayal in Smith. The backlash against Smith, which outraged both liberals and religious conservatives at the time it was handed down in 1990, led to the unlikely political coalition between civil libertarian organizations and conservative religious advocacy groups that brought us the Religious Freedom Restoration Act (“RFRA”), the statute that supplied the basis of the controversial Hobby Lobby decision. That 2104 decision, which Justice Scalia joined, recognized the right to religious accommodation claimed by a family-owned business that objected to including coverage for contraception in its employee health insurance plan as required by the Affordable Care Act. Scalia’s shift on religious accommodation in Smith confounded religious conservatives. It also has confounded liberals, who themselves have shifted their stance on religious accommodation, today embracing the arguments against religious exemptions from general laws of neutral application espoused in Scalia’s Smith opinion. Many of the tributes to Antonin Scalia written since his death have drawn attention to the times when he sided with the liberal justices on the Supreme Court, focusing in particular on the opinions in which he supported procedural rights for criminal defendants and the right to free speech. Yet none of these encomia to Justice Scalia’s “liberal side” discuss his Smith decision, even though it might be regarded as his most liberal decision of all. The omission of Smith from the accounts of Scalia’s “liberal” decisions reflects the politically ambiguous nature of the Smith opinion. That in turn reflects ambiguities within both liberalism and conservatism writ large. Justice Scalia’s assertion in Smith that “the right of free exercise does not relieve an individual of the obligation to comply with a ‘valid and neutral law of general applicability’” was widely viewed by religious conservatives as contradicting their longstanding mission to protect rights to conscientious objection and religious accommodation. Yet it was the liberal Warren Court that first held that the Free Exercise Clause mandates religious exemptions from regulations that impose a substantial burden on religion unless the government can demonstrate a compelling interest in enforcing the regulation. Written by Justice Brennan, the most notoriously liberal member of the Supreme Court, that decision, known as Sherbert v. Verner, was based on quintessentially civil libertarian logic. It represented a mid-century consensus among religious rights advocates and secular liberals that freedom of religion was, like freedom of speech, a civil liberty that warranted strong protection from the Supreme Court. That consensus proved to be fleeting. But the way it broke down defied any simple black and white distinction between the politics of the right and the left. Indeed, even before Sherbert was decided, the seeds of that breakdown could be seen. In 1961, just two years before it issued its decision in Sherbert, the Supreme Court handed down two decisions involving the conflict between Saturday Sabbath observance and laws reflecting the norms of the Christian majority. One, known as Braunfeld v. Brown, rejected a free exercise claim to a right to a religious exemption from Sunday Closing Laws made by Orthodox Jews who owned retail businesses, who argued that they deserved relief from the competitive disadvantage of having to close two days a week instead of just one. Contrary to the Sherbert decision, which viewed conditioning the receipt of economic benefits on sacrificing one’s religious belief as a substantial burden, Braunfeld held that merely making the practice of religion more expensive is not an infringement on the rights protected by the Free Exercise Clause. This decision was in keeping with the Court’s judgment in McGowan v. Maryland that same year, which held that Sunday Closing Laws do not violate the Establishment Clause or the Fourteenth Amendment’s guarantee of equal treatment. Sherbert v. Verner also involved a conflict between a Saturday Sabbath observer and the Christian calendar, although in that case the Saturday Sabbath observer was a Seventh-day Adventist. Her claim to unemployment benefits was denied because she lost her job due to her refusal to work on Saturdays, a denial of benefits that the Supreme Court found to be unconstitutional. Sherbert thus represented a sharp divergence from the approach to analyzing the conflict between Saturday Sabbath observance and majority practices taken in McGowan and Brauner. Whereas McGowan denied that Sunday Closing Laws discriminated in favor of Christians (a position the Court sustained by denying that the Sunday Closing Laws were religious in nature at all), Sherbert took note of the fact that the state in question (South Carolina) “expressly save[d] the Sunday worshipper from having to make the kind of choice which we here hold infringes the Sabbatarian’s religious liberty,” characterizing the preferential treatment of Sunday over Saturday Sabbath observance as a form of religious discrimination. Three decades later, in Smith, Scalia would repudiate Sherbert, thereby vindicating his youthful view of the legitimacy of laws that favor the religious practices of the Christian majority, while at the same time disappointing his conservative Christian supporters who strongly supported Sherbert’s principle of a right to religious accommodation. Twenty-four years after that, in 2014, Scalia would confound people again by recognizing a right to religious accommodation in the Hobby Lobby case that seemed to many observers at odds with the position he had taken in Smith. Indeed, by the time that Hobby Lobby rolled around, the views Scalia had espoused in Smith had become the favored positions of progressives. Scalia had cautioned in Smith that “[t]o make an individual’s obligation to obey such a law contingent upon the law’s coincidence with his religious beliefs, except where the State’s interest is ‘compelling’ … permit[s] him, by virtue of his beliefs, ‘to become a law unto himself.’” This is exactly the concern now being voiced by progressives. They use this argument to counter conservative religious claims to a right to exemption from laws that offend their beliefs, like anti-discrimination laws that require providing goods and services to homosexual individuals and laws requiring health plans to cover contraception. So whose position here is the liberal one? And whose is conservative? And how does the position that Justice Scalia took in the Smith case cohere with the position he took in the Hobby Lobby case, where he sided with the majority opinion, which granted business owners the right to an exemption from the Affordable Care Act’s contraceptive mandate on the basis of their religious objections?

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