Unaffordable Luxury: A Brief Summary of Justice Scalia's Free Exercise and Establishment Clause Legacy
By Michael D. Peabody
Justice Antonin Scalia passed yesterday away at the age of 79, leaving behind a 30-year trail of Supreme Court decisions from the time he was appointed by Ronald Reagan in 1986 until his death. There will be much discussion in coming weeks and months about the potential election year appointment of his successor, and as this survey of Scalia's decisions will show, the new justice will play a pivotal role when it comes to religious liberty jurisprudence. In an effort to understand the extent of the longest-serving Justice's influence and the importance of his replacement, here is a brief survey of how Scalia decided in several key cases.
Employment Division v. Smith, 505 U.S. 577 (1990) – Scalia wrote the majority opinion in the infamous peyote case finding that the free exercise clause of the First Amendment does not allow a person to use religion as a reason not to follow "a neutral law of general applicability." The Court then invited the parties use the legislative process to vet claims for religious exemptions rather than seek a constitutional exemption because using the Courts to overturn laws that adversely affected religious minorities could turn into "a system in which each conscience is a law unto itself." In short, in what is perhaps Scalia's most regrettable dicta, using the Free Exercise Clause to argue against state regulations that adversely affect religion is a "luxury" that "we cannot afford."
Scalia's decision in Smith led Congress to pass the Religious Freedom Restoration Act (RFRA) which was signed into law by President Clinton in 1993. The Court subsequently limited RFRA to federal actions in Boerne v. Flores, 521 U.S. 507 (1997) and Gonzalez v. O Centro Espirita Beneficente Unaio do Vegetal , 546 U.S. 418 (2006). Since the Boerne decision, a number of states have attempted to pass their own RFRA laws to counteract the impact of Smith which continues to define what happens when the free exercise of religion conflicts with regulations. This case, legislative attempts to fix it (RFRA), and its progeny, have created an uncertain patchwork of confusion in which some exercise of religion (such as in Hobby Lobby, described below) is protected from adverse regulation and legislation while other religious exercise remains unprotected.
Based on the broad impact of this decision and Scalia's concurrence in Hobby Lobby, one is left to wonder if Scalia would again frame his decision the same way if he had been given the chance to revisit it.
Lee v. Weisman, 505 U.S. 577 (1992) – Scalia dissented from the decision in this graduation prayer case in which the Court ruled that public schools may not sponsor clerics to conduct non-denominational prayer. In this case, the court found the State acting through schools cannot coerce students to face the social dilemma of either participating in or protesting a prayer that they disagree with. Justice Kennedy wrote, "the embarrassment and intrusion of the religious exercise cannot be refuted by arguing that the prayers are of a de minimis character, since that is an affront to the rabbi and those for whom the prayers have meaning, and since any intrusion was both real and a violation of the objectors' rights."
In Scalia's view, the only way that the government could violate the Establishment Clause would be if the state were to penalize those who refused to support or adhere to a particular religion. Scalia responded to the majority's application of the "coercion test" stating that, "the Court – with nary a mention that it is doing so – lays waste a tradition that is as old as public school graduation ceremonies themselves, and that is a component of an even more longstanding American tradition of nonsectarian prayer to God at public celebrations generally. As its instrument of destruction, the bulldozer of its social engineering, the Court invents a boundless and boundlessly manipulable, test of psychological coercion."
Church of Lukumi Babalu Aye v. City of Hialeah, 508 U.S. 520 (1993) – Scalia joined the majority opinion written by Justice Kennedy when the Court held that a Florida city ordinance prohibiting animal sacrifice as part of a religious ritual or ceremony was unconstitutional. The Court found that the ordinance specifically targeted the Santeria religion and did not pass the strict scrutiny test. In the decision, Kennedy stated, "religious beliefs need not be acceptable, logical, consistent or comprehensible to others in order to merit First Amendment protection."
Rosenberger v. University of Virginia, 515 U.S. 819 (1995) – Scalia joined the majority in finding that it was unconstitutional for a state university to withhold funding from student religious publications provided to similar secular student publications, and that such funding did not violate the Establishment Clause of the First Amendment. The Court found that the student activities funding at the University of Virginia was neutral for purposes of opening "a forum for speech and to support various student enterprises, including the publication of newspapers, in recognition of the diversity and creativity of student life."
Agostini v. Felton, 521 U.S. 203 (1997) – Scalia joined the majority of this 5-4 decision in finding that a state-sponsored education initiative that allowed public school teachers to provide instruction at religious schools if the material was secular and neutral in nature and did not result in "excessive entanglement" between government and religion. This decision overturned the Court's 1985 decision in Aguilar v. Felton which the Court concluded was no longer good law on the basis that Establishment Clause jurisprudence had changed in the past 12 years.
Santa Fe Independent School District v. Doe, 530 U.S. 290 (2000) – Scalia joined Justice Rehnquist and Justice Thomas in dissenting from this 6-3 decision which ruled that a policy that permitted student-led, student-initiated prayer at high school football games violated the Establishment Clause. Rehnquist said that the majority opinion "bristles with hostility to all things religious in public life" and argued that the Establishment Clause should not apply when the speech in the prayer would be that of private individuals not the public school.
Zelman v. Simmons-Harris, 536 U.S. 639 (2002) – Scalia joined the majority in this 5-4 decision which found that an Ohio school voucher program did not violate the Establishment Clause. The majority applied a newly minted Private Choice Test which found that the program (1) had a valid secular purpose; (2) the money went directly to the parents and not the schools; (3) benefited a broad class of beneficiaries; (4) was neutral with respect to religion; and (5) there were adequate nonreligious options. The majority differentiated this decision from the Lemon test because in Lemon the funding went straight to the schools but in Zelman the funding went to the parents. The dissent argued, however, that the fact that funding would go to religious instruction itself would violate the Establishment Clause. It is also noted that this case may have an impact on the upcoming Trinity Lutheran Church v. Pauley case in that the Court did not consider the constitutionality of Ohio's Blaine Amendment which would prohibit state funding of religious education.
Van Orden v. Perry, 545 U.S. 677 (2005) – Scalia joined majority in ruling 5-4 that a Ten Commandments monument that had been erected in 1961 on the grounds of the Texas State Capitol did not violate the Establishment Clause of the First Amendment because it represented historical value and not just religious value.
McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) – Scalia dissented from this 5-4 ruling, issued at the same time but reaching an opposite conclusion as Van Orden v. Perry, that found that a Ten Commandments displays at courthouses in Kentucky were not constitutional because they lacked the historic aspect. Scalia argued that the First Amendment does permit the government to acknowledge God, and in fact that it is permissible for government to hold monotheistic religions such as Christianity, Islam, or Judaism in higher regard than other religions. Wrote Scalia, "With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities, just as it permits the disregard of devout atheists."
Snyder v. Phelps, 562 U.S. 443 (2011) – Scalia joined the majority in this 8-1 decision which held that people protesting on a public sidewalk about a public issue cannot be held civilly liable for the tort of emotional distress even if the speech was outrageous. In this case, members of the Westboro Baptist Church had protested at the military funeral of a Marine, Matthew Snyder, who died in the Iraq war, and had posted statements on their website denouncing the way that Snyder's parents had raised him and displayed placards with offensive statements. Snyder's father sued for defamation and a jury found a total of $10.9 million in damages. Writing for the majority, Chief Justice Roberts stated, ""What Westboro said, in the whole context of how and where it chose to say it, is entitled to 'special protection' under the First Amendment and that protection cannot be overcome by a jury finding that the picketing was outrageous."
Hosanna-Tabor Evangelical Lutheran Church and School v. Equal Employment Opportunity Commission, 565 U.S. ____ (2012) – The Supreme Court ruled unanimously that federal discrimination laws do not apply to the way that religious organizations select religious leaders. Chief Justice Roberts, on behalf of the Court, wrote, "the Establishment Clause prevents the Government from appointing ministers, and the Free Exercise Clause prevents it from interfering with the freedom of religious groups to select their own."
Town of Greece v. Galloway, 572 U.S. _____ (2014) – Scalia joined the majority in this 5-4 decision finding that a town may permit volunteer chaplains to open city counsel sessions with prayer. In a separate concurrence, Scalia joined Justice Thomas stating that the case should have been dismissed outright since the Establishment Clause only applies to acts of Congress, and even then, only if the government engaged in "actual legal coercion" requiring tax money or imposing punishment for not participating.
Burwell v. Hobby Lobby Stores, Inc., 573 U.S. ____ (2014) – In this 5-4 decision, in which Scalia joined the majority, the Court found that a for-profit corporation can claim a religious belief when it ruled that closely held for-profit corporations can be exempted from a federal law that its owners religiously object to if there is a less restrictive means of furthering the law's interest. Ironically, the Court used RFRA to find that the corporation had the right to exemption to a neutral law of general applicability. Citizens facing similar issues arising under state (not federal) law have no similar recourse unless their states have passed state-level RFRAs.
From narrowing the Free Exercise Clause in Smith to his continual argument that the Establishment Clause should be narrowly interpreted to apply only to punitive acts of Congress, Justice Scalia came very close to redefining the two provisions of the First Amendment that most clearly protect religious freedom in America. Yet the fact that he sided with the majority means that he was hardly alone. It will be interesting to see how his replacement interprets the First Amendment, and Scalia's legacy underscores the need for a vigilant electorate as the next President will likely be appointing a number of new justices in the next 4-8 years.
Note: The original post has been updated to include reference to the 2005 decisions in the Ten Commandments cases, Van Orden v. Perry and McCreary County v. ACLU of Kentucky.