Scalias Worst Opinion

Scalias Worst Opinion

Smith is the well-known “Peyote Case,” in which Scalia, for a 5-4 majority, adopted the most narrow possible reading of the Free Exercise Clause of the Constitution, concluding that the First Amendment’s ban on laws “prohibiting” the “free exercise” of religion stated a non-discrimination rule only. Government could not target specific religious practices for prohibition, and could not prohibit conduct because it is engaged in for religious reasons. But if a “neutral” and “generally applicable” rule had the effect of banning religious practice or religiously motivated conduct, that was not a law prohibiting the free exercise of religion.

Scalia’s reading of the Free Exercise Clause was not entirely implausible: There is at least a colorable argument from the text (and history) that the Free Exercise Clause states a rule about the formal content of government’s rules — that government may not adopt a law that, by its terms, prohibits religious exercise. But the better conclusion (as I argue in today’s piece, and at greater length in my academic writing on the topic) is that the Free Exercise Clause confers an affirmative substantive right to the free exercise of religion, unimpaired by government’s laws, and that this sometimes may indeed confer an immunity, specifically for religious conduct, from government’s usual rules. (What was less plausible was Scalia’s manipulation in Smith of the Court’s prior Free Exercise Clause precedents, which Scalia refashioned into rather unprincipled, incoherent exceptions to his refashioned rule.)

I argue that Smith is a positively perverse reading of the Free Exercise Clause: As the sphere of government expands, the sphere of religious liberty contracts. And it has proved unqualifiedly pernicious in its consequences.