Justice Scalia and Religious Conservatives

At the Center for Law and Religion Forum, Robert Delahunty has an interesting, even provocative retrospective on the late Justice Antonin Scalia. Much of his post addresses the role of tradition in Justice Scalia’s constitutional jurisprudence, an underexplored topic. At the end, though, Delahunty offers some observations on Justice Scalia’s contributions to the jurisprudence of the religion clauses.

Ironically, Delahunty writes, in this area, Justice Scalia will be remembered most for an opinion, Employment Division v. Smith, that religious conservatives have come to regret. Smith largely did away with constitutionally-required accommodations for religious minorities, a position that, Robert says, appealed to many religious conservatives during the Reagan era. Even without a constitutional requirement, a religion-friendly culture would always find ways to accommodate religious dissenters. Besides, religious conservatives never thought they would need accommodations. Sure, the universities and media were hostile. But the culture was theirs. They were optimists.

Things have changed:

At least from the perspective of the present, Scalia’s most influential opinion was Employment Division v. Smith, which was of course what created the current environment of extreme danger for religious liberty. Young people may not remember this, but the Smith decision was completely aligned with the Reagan Administration’s jurisprudence of religion. The thinking then was that the Court was one-sidedly supporting minority religions (the Jehovah’s Witnesses, let’s say) while rejecting the claims of the larger religions (the Catholics, the Southern Baptists) that had the clout to affect politics and culture. Hence, the reasoning went, the Court should open the sluices for majoritarian politics in the area of religion—which Smith attempted to do. What the Reaganite analysis did not foresee was how much sway the big churches would lose in the political arena in the ensuing decades. Now those denominations have to operate in a political environment largely populated by the hostile and unchurched; they are carrying the stigma of major recent political defeats; they have the unenviable task of explaining why they are “against equality” for women and gays; and they do not have the comfort of a protective Free Exercise constitutional jurisprudence.

I am not saying this to demean Justice Scalia, or indeed anyone in the conservative movement. I was a foot soldier in it myself. Just three years before Scalia was appointed to the Court, I joined with two good friends in founding a Federalist Society chapter at Harvard Law School. We were the first, or after Chicago maybe the second, chapter of that brand new society. And I went to work for the Reagan Administration’s Civil Rights Division in 1986. Some stood at the Hot Gates, and I was one of them. But human history is a record of cruel ironies and unexpected reversals. The point is to pick ourselves off the floor, take a hard, clear-eyed view of where we now are, and resume the fight again, but for new causes and against different enemies. And actually, I am guardedly optimistic.

You can read Delahunty’s entire post here.

Mark L. Movsesian co-directs the Tradition Project at the St. John’s Center for Law and Religion.