Professor Paulsen and Justice Scalia: A Qualified Defense of the Smith Decision

There are some problems in the reasoning of Justice Scalia’s opinion in the 1990 religious freedom case. But in its holding, and in its rejection of a quarter century of jurisprudence that could not be squared with the First Amendment, the judgment was correct.

The formidable Michael Stokes Paulsen recently argued in this space that Employment Division v. Smith was “Justice Scalia’s Worst Opinion.” Paulsen criticized the 1990 Smith ruling, in which the Supreme Court declined to make an exemption on free exercise of religion grounds from a state criminal law on drug abuse. In Paulsen’s view, the ruling was a “constitutional disaster” with “devastatingly long-term harmful” effects, whose reasoning was “dreadful,” an “embarrassment” that adopted “a dubious and insidious interpretation of the Free Exercise Clause,” representing Justice Scalia’s “worst piece of judicial craftsmanship in a major constitutional opinion in nearly thirty otherwise magnificent years on the Court.”

My friend Mike Paulsen pulls no punches.

No justice of the Supreme Court has a perfect record. And it won’t do to say that there are six or eight Scalia opinions that are worse than Smith, for that wouldn’t be much of an answer to Paulsen. I want instead to make a qualified defense of Scalia’s Smith opinion. There are some problems in its reasoning, one of them quite serious, and I will come to those. But in its holding, and in its rejection of a quarter century of jurisprudence that could not be squared with the First Amendment, Smith was correct. The bipartisan, interfaith coalition that formed to pass the Religious Freedom Restoration Act in 1993, in reaction to Smith, fervently believed the decision was wrong, as Paulsen does. But one can be glad that our elected officials took an interest in strengthening our legal protections of religious freedom while believing that Smith nonetheless got the constitutional question right.

Paulsen’s case against Justice Scalia’s Smith opinion is one part overstatement, one part unexamined assumption, one part question-begging, one part dubious historical assertion, and one part misreading of the opinion.

Professor Paulsen’s Errors about Justice Scalia

Overstatement: Justice Scalia, according to Paulsen, held that the First Amendment’s “right to the free exercise of religion is not a substantive freedom.” That is, it “confers no constitutional immunity from government interference,” and expresses “merely a non-discrimination rule.” He goes on to characterize Scalia’s view this way:

Government may not set out to target, or discriminate against, religious conduct because it is religious conduct. But if government’s primary aim is some general policy, the fact that government incidentally hits religious conduct presents no special constitutional problem.

The second sentence just quoted touches on a very real problem to which we will return—namely, how to grapple with the problem of “neutral” laws that nonetheless have an adverse impact on religious freedom. But let’s first recognize that the principle of “no targeting of religion” is not exactly nothing as a substantive protection.

Anyone can see, in the way Justice Scalia has voted and sometimes written in notable cases since Smith, how strongly he believes in protecting religious liberty. He has opposed unequal treatment of religious claimants in cases such as Good News Club v. Milford Central School (2001) and Locke v. Davey (2004). And he has joined in arguments that go beyond a simple “equal treatment” principle in cases such as Christian Legal Society v. Martinez (2010) and Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC (2012). But carried away by his outrage over Smith, Paulsen unjustly overstates Justice Scalia’s view, making him out to be hostile to protecting religious freedom in any meaningful way.

Unexamined assumption: Paulsen asserts that the free exercise clause requires a “strict standard favoring religious liberty.” But he does not really elaborate on what this means in practice. The phrase “strict standard” suggests that he accepts the modern approach in constitutional law of applying “strict scrutiny,” demanding that government show a “compelling interest” where “preferred freedoms” are concerned.

What this means is an effective reversal of the traditional presumption of the constitutionality of legislation, shifting the burden of the argument from the party challenging the validity of a law to the government defending it. But from the beginning of our constitutional law in the 1790s, the normal practice of the Supreme Court has been to presume that the actions of other branches of government are constitutionally valid, placing the burden of proof on those who challenge them.

This posture of judicial restraint, expressed in the rebuttable presumption that the elected branches of government know their constitutional business and act in good faith, eroded somewhat at the turn of the previous century in the era associated with Lochner v. New York (a 1905 case that Paulsen calls one of the Court’s “greatest atrocities”). But the open reversal of the traditional norm, frankly acknowledged as new by its liberal activist practitioners, arrived only in the mid-twentieth century. I don’t know why Paulsen should uncritically embrace an activist posture without constitutional or historical warrant that is most closely associated with justices such as William O. Douglas, Earl Warren, and William Brennan.

And if we think the only way to protect religious liberty is by accepting bad theories of constitutional judging, then we’re doing it wrong.

Question-begging: Here is the heart of Paulsen’s misplaced criticism of Justice Scalia’s Smith opinion. He appears to believe that religious freedom can only be protected by a system of exemptions from neutral laws of general applicability. Thus, a statute that regulates people’s conduct must continue to be obeyed by everyone else, but may be disregarded by parties granted an exemption carved out by judges on First Amendment grounds.

There is good reason for this approach being unknown in our constitutional law before 1963. In the Supreme Court’s first religious freedom case, concerning the federal government’s ban on polygamy in the Utah Territory, the justices rejected it unanimously, noting (in language partially quoted by Justice Scalia in Smith) that this theory of the First Amendment would introduce “a new element into criminal law,” one that would “permit every citizen to become a law unto himself” so long as he plausibly claimed his religious belief required him to act in ways the law generally forbade.

The Court continued to resist this approach until Sherbert v. Verner in 1963. This ruling required South Carolina to reinstate the eligibility for unemployment benefits of a Seventh-Day Adventist who had declined available jobs requiring her to work on Saturdays. As Justice John Marshall Harlan remarked in dissent, “it would be a permissible accommodation of religion for the State, if it chose to do so, to create an exception to its eligibility requirements for persons like the appellant.” But Justice Brennan, who wrote for the Court in Sherbert, provided no ground in the text, original understanding, or history of the First Amendment for (in Harlan’s words) “the conclusion that the State is constitutionally compelled to carve out an exception to its general rule.”

It was this ahistorical innovation of the Warren Court that was undone in Smith when Justice Scalia referred to “a private right to ignore generally applicable laws” as “a constitutional anomaly.”

Dubious historical assertion: Paulsen, however, thinks it was Justice Scalia who turned his back on the historic requirements of the free exercise clause. Understandably, in a Public Discourse essay, Paulsen doesn’t have the space to substantiate this claim. So he relies on one authority, writing that “the distinguished religious liberty scholar Michael McConnell has demonstrated” the founding generation’s understanding of the free exercise clause—that it “could, and often would, require exemption from the application of the ordinary laws of the secular state.”

No one can disagree with Paulsen’s description of McConnell as distinguished, but the latter’s well-known 1990 article criticizing Smith, and making an originalist case for exemptions jurisprudence, began rather than concluded the academic debate over the case. Many readers might find McConnell’s case unpersuasive, as I do, after reading the cogent responses published in 1991 and 1992 by Gerard V. Bradley and Philip A. Hamburger. Like Paulsen, I can do little more here than point readers to this debate and invite them to consider the historical sources discussed there. But I can add that it is hard to credit the idea that the founding generation envisioned such an enlarged role for the judiciary as the exemptions approach requires.

What Sherbert inaugurated is not mere “enforcement” of a freedom-of-religion principle, but a “balancing” approach, with “burdens” on religious practice weighed against “interests” of the state. This involves judgments about policy outcomes that judges are no better equipped to make than others. It also suggests that there is no adamantine principle of religious liberty that can resist the government’s authority, if the latter’s “interest” is “compelling” enough. The Congress that passed RFRA in 1993 may have had sound reasons for assigning such responsibilities to judges by statute, but it is not really credible that the founders, with their much more limited view of judicial authority, intended to do so by ratifying the First Amendment.

Misreading: Paulsen claims, finally, that Justice Scalia abandoned his avowed originalism in Smith and adopted a “changed cultural conditions” rationale for foreclosing exemptions. If true, this would be quite a trespass for a judge who has long excoriated the “living Constitution” approach to deciding cases. But it is not true.

Paulsen builds this accusation on one sentence in Scalia’s Smith opinion: “Any society adopting such a system [of constitutionally required exemptions] would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs.” Paulsen reads Scalia’s allusion to our contemporary religious diversity—greater than in the past—as signaling that transient “policy circumstances” trump the fixed meaning of the constitutional text. But this mistakes Scalia’s meaning entirely.

Scalia was wrapping up his explanation of why a “compelling interest” test that carved out occasional exemptions from general laws was a “constitutional anomaly.” In every other field of constitutional law, he noted, the “compelling interest” test resulted in equal treatment under the law. Here it would generate, and had a history of generating, unequal treatment. Even in a less diverse society, that would be unjustified—it “would be courting anarchy” and therefore produce results we ought to suspect could not have been intended. That problem ought to stare us in the face more obviously in a society with the great diversity we see today. Noticing how modern facts illuminate the text’s fixed meaning is not the same thing as embracing a “living Constitution” with an evolving meaning.

Justice Scalia’s Real Errors

There are some real problems with the Smith opinion, but they are not the ones Paulsen alleges. One is that the opinion repudiated a quarter century of jurisprudence on the free exercise clause without overturning any precedents, perhaps because Scalia could not round up the votes to do so. Sherbert itself, and related cases in the unemployment benefits field, survived without any real explanation. And the other most prominent exemptions case, Wisconsin v. Yoder (1972), was left standing on the implausible ground that it involved not just religious freedom but also constitutionally protected parental rights, and was therefore a “hybrid” case. But how two constitutional arguments—one declared wholly inadequate and the other never having been used on its own to obtain an exemption—suffice to relieve someone of the strictures of law that continue to bind everyone else . . . Scalia never explains.

More serious is the one truly egregious gap in Scalia’s analysis, one that Paulsen only views through the exemption lens. For Scalia, direct attacks on religious faith and conduct, whether overt or covert, must be invalidated on free exercise grounds. This the Court went on to do a few years after Smith, in Church of Lukumi Babalu Aye v. City of Hialeah (1993), in a unanimous opinion that Scalia joined. But laws that make no such direct attack, yet in their general terms do some collateral damage to religious faith and conduct, are no violation of the free exercise clause in Scalia’s analysis.

Paulsen sees this and denounces it as the fruit of reading the free exercise clause only as a “non-discrimination” principle. But it is more serious than that. It amounts to saying that, of all the clauses in the Constitution that a legislature can violate and the judiciary can vindicate, only the free exercise of religion is a norm that legislatures are incapable of violating inadvertently—or at least when they do so, there is no recourse in the judiciary. There is no other provision of the Constitution about which Scalia or any other justice would say this.

I am not altogether sure that Scalia meant to say exactly this, but it is the upshot of his reasoning. In Smith he had only to decide the relatively easy case whether a criminal drug statute, by virtue of the First Amendment, could not be enforced against religiously motivated drug users while it remained in force for everyone else. The answer was plainly no. More complicated questions of compulsion to violate one’s religious conscience by some affirmative act generally required by public policy—such as in the Hobby Lobby case, for instance—lay in the future, and did not need to be addressed in Smith.

Elsewhere I have tried to suggest a way of thinking through a religious freedom jurisprudence that gives meaningful constitutional protection even from generally applicable laws, but without “balancing” tests, without “compelling interest” calculations, and without constitutional carve-outs of exemptions from the laws. For those of us interested in plugging the gap left by Justice Scalia, in a case that was correctly decided on the more limited question it addressed, there is a lot of work left to be done. That work is becoming truly urgent in an age growing more impatient with claims for religious exemptions that rest on the recognition of “burdens” many others do not or will not take seriously. Pining for what was lost in Smith and patching it up with RFRA will not, I fear, work for the long haul. What we need to recover is a more principled understanding of the law of religious freedom.

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