Why I’m Still Siding with Scalia on Religious Liberty

According to the author, Ramesh Ponnuru, Scalia’s 1990 opinion in Employment Division v. Smith argued that prior to the 1960’s the Supreme Court never granted religious groups exemptions to specific laws. Ponnuru sides with his understanding of Scalia’s argument.

I’m not familiar with Scalia’s reasoning in the case, but Ponnuru doesn’t make much of a case. In the article linked above, he basically backs down, while acting like he hasn’t.

The main (and nearly only) point of my previous comment was that we should be skeptical of the idea that the Constitution as originally understood required judges to make exemptions to laws for religious believers, given that courts did not make such exemptions until the Warren Court.

But his thesis wasn’t merely that we should be skeptical. It was that SCOTUS should not grant exemptions, because this is probably not the original intent of the First Amendment.

And his case for that is pretty weak, mainly on two grounds:

• What’s the point of any part of the Constitution if not to be upheld against laws or parts of laws that violate it?
• Ponnuru doesn’t seem to consider the possibility that prior to the 60’s laws that infringe on religious liberty just weren’t being passed with the frequency they have been since. Perhaps the Court didn’t see that coming and, if it had, would have — assuming originalist reasoning — made exemptions sooner.

Ponnuru does concede this though…

It may also be, as Matthew Franck argues in a forthcoming essay, that Scalia’s understanding of free exercise in that case fails to provide enough protection for religious liberty. Franck’s case is very different, though, from the familiar criticism of Smith: He shares Scalia’s opposition to judge-made exemptions but notes that Scalia ignores the possibility that some laws that place burdens on religious liberty may need to be set aside entirely even if those laws are not motivated by hostility to free exercise.

Personally, I don’t know why that isn’t obvious. Motivation has nothing to do with whether a Constitutional principle is being effectively violated or not.

The courts may not have been deciding for religious minorities, but Quakers had been receiving (mostly) exemptions from military service all the way back to the Founding. I think the principle was understood, and this is an error of Scalia’s, along with his opinion in Kelo.