Today is the 25th anniversary of Justice Anton Scalia’s opinion in Employment Division v. Smith, which Michael Stokes Paulsen describes as Justice Scalia’s Worst Opinion:
Smith is not by a long shot the worst Supreme Court decision of all time, or even of the past twenty-five years. As a matter of the human harm it inflicts, there are far more egregious cases.Planned Parenthood v. CaseyandRoe v. Wade, the Court’s abortion decisions,top the listin the modern era. Nor isSmith the most indefensible of opinions in terms of the Court’s legal analysis.Roe,Casey,Lawrence v. Texas, andWindsor v. United States, each adopting and extending some form of “substantive due process,” are worse thanSmithon this score.Smithis a dubious and insidious interpretation of the Free Exercise Clause, and Scalia’s opinion is an embarrassment, but it embodies an at least barely plausible argument from the constitutional text.
ButSmith is hugely pernicious in its effects. Like a weed, it intertwines with other actions of government, strangling freedom. In fact,Smith’s subtlety and superficial plausibility are in part what make it so deadly. AndSmith is positively perverse in its consequence: not only does the Constitution’s protection of religious free exercise entail no positive protection for religious free exercise, butSmith’s rule means that the sphere of religious liberty is utterly at the mercy of government’s choices. Thebroaderand more unrestrained government’s reach, thesmallerthe sphere for religious liberty. As government expands, religious liberty shrinks. This is an upside-down reading of a constitutional provision that obviously singles out religion for special protection from government.
Twenty-five years afterSmith, we’ve come a long way, but not in the right direction. The right to freedom of religious exercise and conscience—which Scalia cheerfully left in the hands of legislatures—is being overrun by those same legislatures and by courts acting in the name of the Constitution. We are relearning a bitter lesson: that what Scalia called “a luxury” that “we cannot afford” is in fact the first, the last, and the most fundamental line of defense against tyranny in the form of legal evisceration of religious conscience.
Scalia’s opinion was so bad that three years later, a nearly unanimous Congress (all but three votes in the Senate) passed and President Bill Clinton signed into law the Religious Freedom Restoration Act as a legislative remedy. Ironically, yesterday’s liberals–who overwhelmingly supported RFRA–are today running from it. I guess they are okay with Scalia’s shrinking of the sphere of liberty…