Religious Liberty, R.I.P.?

The news of Justice Antonin Scalia’s death brought an immediate seizing up in every conservative’s heart—and that is just what Scalia had been warning against for so long. For Scalia, we rely on the Supreme Court to settle our most delicate political and moral conflicts, from gay marriage to questions of religious liberty. But according to the Constitution, it has no such power. The predictable result of allowing the Supreme Court to gather unto itself extra-Constitutional power is that everything hangs on one man’s life in a 5-4 split Court.

Listen to Scalia’s dissenting opinion in Obergefell v Hodges (2015), where the Supreme Court swept away 4000 years of Judeo-Christian cultural and legal understanding of marriage. “Today’s decree says that my Ruler, and the Ruler of 320 million Americans coast-to-coast, is a majority of the nine lawyers on the Supreme Court…. This practice of constitutional revision by an unelected committeee of nine…robs the People of the most important liberty they asserted in the Declaration of Independence and won in the Revolution of 1776: the freedom to govern themselves.”

An essential part of that freedom was embedded in the initial clause of the First Amendment: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof;…” Scalia rightly understood that that this amendment was meant to protect religious worship from interference by the state; it was notmeant as an instrument of state sponsored, secular antagonism toward religion.

As Scalia poignantly stated in his dissenting opinion to McCreary County v. American Civil Liberties Union of Kentucky (2005),

On September 11, 2001 I was attending in Rome, Italy an international conference of judges and lawyers, principally from Europe and the United States. That night and the next morning virtually all of the participants watched, in their hotel rooms, the address to the Nation by the President of the United States concerning the murderous attacks upon the Twin Towers and the Pentagon, in which thousands of Americans had been killed. The address ended, as Presidential addresses often do, with the prayer “God bless America.” The next afternoon I was approached by one of the judges from a European country, who, after extending his profound condolences for my country’s loss, sadly observed “How I wish that the Head of State of my country, at a similar time of national tragedy and distress, could conclude his address ‘God bless ______.’ It is of course absolutely forbidden.”

That is one model of the relationship between church and state—a model spread across Europe by the armies of Napoleon, and reflected in the Constitution of France, which begins “France is [a] . . . secular . . . Republic.” …Religion [on this model] is to be strictly excluded from the public forum. This is not, and never was, the model adopted by America [emphasis added].

For Scalia, this secularized European model was rejected by the American Founders precisely because it undermined the moral order upon which all liberty, including religious liberty itself, depended. Continuing in his McCreary County dissent, Scalia argued, “Those who wrote the Constitution believed that morality was essential to the well-being of society and that encouragement of religion was the best way to foster morality.”

But Scalia also rejected the notion that protection of religious liberty included the protection of anything and everything anyone happened to claim to believe—a notion which has led to the view that the First Amendment protects unbelief as a belief, or protects beliefs that violate reasonable state laws.

In regard to the first, Scalia dissented from the Court’s opinion in McCreary County that “the First Amendment mandates governmental neutrality between … religion and non-religion.” Likewise, he rejected the majority opinion that the state favoring “religion generally…is unconstitutional.” “Who says so?” Scalia asked rhetorically, “Surely not the words of the Constitution. Surely not the history and traditions that reflect our society’s constant understanding of those words.”

Again, for Scalia religious belief was the foundation of moral order, therefore, the state had a great interest in favoring belief over nonbelief.

For Scalia, that also meant that not just any belief could be protected. Accordingly, he wrote the opinion in Employment Division, Department of Human Resources of Oregon v. Smith (1990), in which two native Americans claimed that being fired for smoking peyote (which the Native American Church demands for religious reasons) transgressed their religious freedom: “The mere possession of religious convictions which contradict the relevant concerns of a political society does not relieve the citizen from the discharge of political responsibilities.” In other words, the smoking of hallucinogenic drugs like peyote undermined, rather than sustained, the moral order; therefore, the state had to draw a line on what kinds of beliefs can claim protection.

What will happen to this balanced, nuanced understanding of religious liberty now that Scalia is gone? Well, you can be sure that President Obama will nominate a candidate who rejects it. This is just what Scalia feared. “I would not like to be replaced by someone who immediately sets about undoing what I’ve tried to do for 25-26 years,” he stated in an interview four years ago.