Some people opine that Antonin Scalia was not a friend of religious liberty, and that after his departure, religious liberty in America is no more at risk than it was before. They are wrong. Without Justice Scalia, religious liberty is in peril.

True, Justice Scalia was the author of and enthusiastic apologist for Employment Division v. Smith (1990), which held that any generally applicable law, not otherwise specifically directed at a religious practice, but that nonetheless impedes an adherent’s religious practice, is valid, the Free Exercise Clause notwithstanding.  Vigorously defending it on originalist grounds against subsequent attacks by Justice O’Connor in City of Boerne v. Flores (1997), Scalia made Employment Division v. Smith a well-established precedent, which has stood now for a quarter of a century.

Under City of Boerne, the Court did not allow Congress to reinstate the test of Sherbert v. Verner (1963) as a constitutional doctrine, which had held that a law that substantially curtails a religiously based action must pass strict scrutiny.   Nonetheless, Justice Scalia and his colleagues affirmed that Employment Division v. Smith only established a floor of rights under the Free Exercise Clause. Congress and the states could accord religious liberty greater protection under RFRAs or other legislative enactments in their respective jurisdictions. But for legislative protection of religious liberty to succeed, the Court needed to develop a more accommodating position regarding religion and the state.  And in that quest Justice Scalia was indispensible.

His support was critical in the Court’s allowing government recognition of the role religion in American culture and American politics in support of school choice (Zelman v. Simmons-Harris (2002)(5-4), in prayers before city councils (Town of Greece v. Galloway (2014)(5-4)), and in permitting a ministerial exception to the application of federal employment laws (Hosanna-Tabor Evangelical Lutheran Church v. EEOC (2012)(9-0).   As he noted in his concurrence in Van Orden v. Perry (2005)(5-4), “[I] would [adopt] an Establishment Clause jurisprudence that is more in accord with our nation’s past and present practices…the central feature of which is that there is nothing unconstitutional in a State’s favoring religion generally, honoring God through public prayer and acknowledgement….”

Nonetheless, the continuing influence of the Lemon Test and the allied Endorsement Test of Justice O’Connor continues to constrain governmental recognition of the religious voice in the public square.  Prayer has been wiped clean (at least officially) from schools and school activities (Lee v. Weisman (1992)(5-4), Scalia dissenting), crèches and religious monuments still have a hard time of it (McCreary County v. ACLU of Kentucky (2005)(5-4), Scalia dissenting), and the Blaine amendments have been given new recognition (Locke v. Davey (2004)(7-2), Scalia dissenting).  This year, state Blaine amendments are back before the Supreme Court (Trinity Lutheran Church of Columbia, Inc. v. Pauley, and Douglas Cnty. School Dist. v. Taxpayers for Public Education), but Scalia is missing.

Scalia’s defense of legislative acknowledgement and support of religion depended in the first place on the political will in Congress and in the States to protect religious liberty.  But it is problematic whether such political will is sufficiently strong today.  For decades, secular opinion has tried to delegitimize the religious voice in the public square. Yet virtually every social reform of the 19th century came about because religion was dominant in the social space.

In the 20th century, however, governmental action, as in the New Deal and the Great Society, began contesting and then, in recent years, actually forcing religious groups out of the social space.  For example, Catholic Charities’ adoption services in Massachusetts, San Francisco, Illinois, and Washington, D.C. had to shut down because they would not place children in same sex households.  In the current Congress, the Child Welfare Provider Inclusion Act, designed to protect such agencies, is stalled.

Alarmingly, government actors began limiting the right of religious groups, such as the Christian Legal Society, to exclude those who were not in accord with the tenets of the religion, as happened at the University of Hastings Law School (CLS Univ. of Cal. Hastings v. Martinez (2010)(5-4), Scalia dissenting).

Ominously, some governmental actors are now affirmatively attacking religiously based practices.  In 2010, San Francisco considered a ballot initiative that would have banned male circumcision “for health reasons.”   The proposal was stricken from the ballot because of California’s home-rule restrictions.

Most prominently, we have seen the Department of Health and Human Services seek to mandate religious institutions to participate in the provision of contraceptive services to their employees, contrary to the religion’s sincerely held tenets.

And that brings us to the Religious Freedom Restoration Acts of the federal government and some of the states. The original stated purpose of RFRA was to reinstate a form of the strict scrutiny test protecting religious exercise in the face of contrary positive law, drawn from Sherbert v. Verner (1963), which Employment Division v. Smith had effectively displaced.  As the case law developed after Sherbert, the Court established a number of criteria before it would find that a religiously based practice had been curtailed in violation of the Free Exercise Clause: 1) the practice had to be based on a religious belief that was sincerely held and that was significant or central to the believer; 2) the government’s action had to constitute a substantial burden on the religiously based action; and 3) the government’s action could not pass strict scrutiny.

Although the preamble to the federal RFRA declares that the purpose of the Act was “to restore the compelling interest test as set forth in Sherbert v. Verner,” the operative sections merely stated:  “Government may substantially burden a person’s exercise of religion only if it demonstrates that application of the burden to the person— (1) is in furtherance of a compelling governmental interest; and (2) is the least restrictive means of furthering that compelling governmental interest.”

In Burwell v. Hobby Lobby Stores, Inc. (2014)(5-4), the Court struck down the initial HHS mandate.  In his majority opinion, Justice Alito (joined by Justice Scalia) omitted any requirement that the religious belief be sincerely held and central.  Instead, he imported the definition from Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), which “defined the ‘exercise of religion’ to include ‘any exercise of religion, whether or not compelled by, or central to, a system of religious belief.’” RFRAs therefore can provide even greater protection for religious liberty than the older Sherbert v. Verner test.  A revised HHS mandate has now been argued and rebriefed to the Court, Little Sisters of the Poor Home for the Aged v. Burwell, but Justice Scalia is not present.

The reader will have noticed that so many of the critical cases affecting religious freedom were decided by a 5-4 vote. Scalia’s absence and possible replacement by a less religiously accommodating justice bodes ill for religious freedom in this country.

Of particular concern is the fallout from Obergefell v. Hodges (2015). Chief Justice Roberts noted how little the majority opinion by Justice Kennedy left to those whose religious principles oppose gay marriage: “The majority graciously suggests that religious believers may continue to ‘advocate’ and ‘teach’ their views of marriage. The First Amendment guarantees, however, the freedom to ‘exercise’ religion. Ominously, that is not a word the majority uses.”  We should note that Chief Justice Roberts emphasized the constitutional protection of free exercise itself and did not mention Employment Division v. Smith.  Perhaps he was signaling his willingness to consider greater constitutional protections for free exercise.  Or perhaps, he was laying the groundwork for protecting religious exercise, even under Employment Division v. Smith, where governmental action is specifically targeted against a religious practice, as in Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993)(9-0).

In fact, in his dissent in Obergefell, Justice Alito predicted such anti-religious action: “Today’s decision will be used to vilify Americans who are unwilling to assent to the new orthodoxy. In the course of its opinion, the majority compares traditional marriage laws to laws that denied equal treatment for African-Americans and women. The implications of this analogy will be exploited by those who are determined to stamp out every vestige of dissent.”

And so it has come to pass.  Under pressure from business, media, and pressure groups, Indiana passed a “fix” to its RFRA so that a business could not “discriminate” against LGBT persons. Major businesses and persons prominent in the public eye threatened to boycott Georgia’s RFRA legislation if it was not repealed. According to the Washington Post, “The Georgia bill would have allowed pastors to opt out of performing same-sex weddings and would have given religious organizations the ability to refuse certain services, including charitable services, if doing so clashed with their religious beliefs. Faith-based organizations also would have been permitted to use their religious beliefs to govern hiring and firing decisions.”  Bowing to pressure, Georgia’s Republican governor Nathan Deal vetoed the bill on March 28.

Whether it be wedding photographers or cake makers, state public accommodation laws force religious based businesses to provide services to LGBT persons over religious objections.  The ACLU suggests that the Equal Protection Clause may trump application of RFRA laws: “Religious freedom in America means that we all have a right to our religious beliefs, but this does not give us the right to use our religion to discriminate against and impose those beliefs on others who do not share them.” []  We know that Justice Scalia would not have interpreted the Equal Protection Clause in such a way.

In sum, there is a judicial, legislative, big business, and media counter offensive to any attempt to expand religious liberty through legislation, particularly focused against those persons who have religious objections to gay marriage. 

As noted above, without Justice Scalia, religious liberty is in peril.