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Conservative Supreme Court Justices Take Aim at Scalia

The Roberts court is poised to undo the late Justice’s landmark ruling on religious freedom and government overreach.

Chip Somodevilla/Getty Images

Justice Antonin Scalia, who died four years ago last week, is among the most celebrated figures in the conservative legal movement. George Mason University’s law school now bears his name. His former colleagues on the Supreme Court frequently cite his writings, particularly when it comes to interpreting statutes. President Donald Trump, who often vowed to appoint judges “in the mold of Scalia,” posthumously awarded him the Presidential Medal of Freedom in 2018.

But that reverence does not extend to one of his most influential opinions: the majority decision he authored in Employment Division v. Smith in 1990.* In Smith, Scalia concluded that courts could not use the First Amendment’s free exercise clause to carve out exemptions from “neutral laws of general applicability”—in that case, Oregon’s criminalization of peyote. The ruling drew criticism from religious groups across the country and led to a wave of religious freedom legislation that sought to provide protections that the court refused to enforce on its own.

Three decades later, a coalition of religious groups and legal scholars is now asking the Supreme Court to overturn its ruling in Smith through a new case, Ricks v. Idaho Contracting Board. It argues that Scalia’s concerns about judicial power proved to be largely unfounded, that he misunderstood the framers’ vision of free-exercise protections, and that the ruling has unfairly burdened religious minorities in such cases ever since. If the justices agree to take up the case, the court’s conservative justices could ultimately scrap one of their icon’s most influential decisions.

The case centers around George Ricks, an Idaho contractor who refused to provide his social security number when registering with the Idaho Bureau of Occupational Licenses in 2014. In his petition for the court, Ricks’s lawyers say he has “long had concerns, based on his understanding of the Bible, that it is morally wrong to participate in a governmental universal identification system, especially to buy or sell goods and services.” More specifically, Ricks asserted in a self-written filing in state court that he believes his social security number is “a form of the mark, and in substance (essence) the number of the 2-horned beast written of in the Holy Bible.”

One month later, the board denied Ricks’s application to register as a contractor, placing him in legal jeopardy if he practices his vocation in the state. In response, he mounted a series of legal challenges to the state’s requirement. One argument he raised was that Idaho’s denial of his application violated the First Amendment’s free exercise clause. The Idaho Court of Appeals disagreed. “Generally applicable and neutral laws that incidentally burden the exercise of an individual’s religion do not offend the First Amendment,” the court said, summarizing the Supreme Court’s holding in Smith three decades earlier. Ricks now asks the justices to overturn that precedent.

The court’s ruling in Smith turns 30 years old this April, but it never quite lost its controversial reputation. The case centered on two men, Alfred Smith and Galen Black, who lost their jobs at a drug rehabilitation organization for using peyote during ceremonies in the Native American Church. When the two men applied for unemployment benefits from the state, Oregon denied them because they had been terminated for “misconduct.” The state did not exempt peyote use for sacramental reasons in its drug laws at the time. Oregon’s courts ruled in favor of Smith and Black, concluding that the denial had violated the First Amendment’s free exercise clause.

When the case reached the Supreme Court in 1990, however, the justices ruled against Smith and Black in a 5-4 vote. Scalia, who penned the court’s opinion, wrote: “Any society adopting such a system would be courting anarchy, but that danger increases in direct proportion to the society’s diversity of religious beliefs, and its determination to coerce or suppress none of them.” He warned that such an approach “would open the prospect of constitutionally required exemptions from civic obligations of almost every conceivable kind,” running the gamut from tax avoidance to racial discrimination.

Concerns about judicial overreach also buttressed Scalia’s opinions. He wrote that courts would be forced to determine which religious practices were “central” to each faith, which he found as unacceptable as courts deciding which ideas were best in free-speech cases. Such assessments were beyond the power or role of the American judiciary to deliver, Scalia warned. “What principle of law or logic can be brought to bear to contradict a believer’s assertion that a particular act is ‘central’ to his personal faith?” he wrote.

He also expressed confidence that the democratic process would be able to solve the problem at hand, even though it may give a “relative disadvantage” to uncommon practices. “But that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs,” Scalia wrote. In the end, the American public vindicated Scalia’s perspective. Congress passed the Religious Freedom Restoration Act, also known as RFRA, in direct response to the court’s ruling. The federal law, as well as similar laws in almost half the states, effectively implement by statute what the Supreme Court would not do by opinion.

In a concurring opinion, Justice Sandra Day O’Connor said she would reach the same result through other means. In her view, exempting members of the Native American Church from state anti-drug laws “would seriously impair Oregon’s compelling interest in prohibiting possession of peyote by its citizens.” (This interest probably seemed more compelling at the height of the “War on Drugs” than it does today.) On Scalia’s conclusions in particular, O’Connor wrote that they were “incompatible with our Nation’s fundamental commitment to individual religious liberty.” O’Connor wasn’t the only one who held this view. After the decision in Smith was announced, a broad coalition of religious groups and civil rights organizations urged the Supreme Court to rehear the case, all to no avail.

Ricks v. Idaho Contracting Board has rekindled these old debates. In a friend-of-the-court brief filed earlier this year in Ricks, a group of religious organizations has once again asked the court to overturn the ruling, citing the courts’ handling of RFRA cases as proof that the judiciary was “entirely capable of balancing claims for religious accommodation against governmental interests.” Among the brief’s signatories were the Seventh-Day Adventists’ general conference, the Church of Jesus Christ of Latter-Day Saints, the Orthodox Union, and the Southern Baptist Convention.

A group of legal scholars also urged the court to take action in Ricks’s case. In its friend-of-the-court brief, it wrote, “By leaving protection of religious minorities to the vicissitudes of majoritarian rule, the Smith rule undermines a core motivation for adoption of the Free Exercise Clause: protection of the religious exercises of minority religions.” As a nod to the court’s current ideological makeup, it also drew heavily upon arguments by originalist legal scholars that the Smith ruling misunderstood the history and original meaning of the free exercise clause.

All of these forces have good reason to believe the Supreme Court might be receptive to revisiting Smith. Last January, the justices declined to hear Kennedy v. Bremerton School District, a case brought by a high school football coach who was suspended for leading students in prayers before and after games. Justice Samuel Alito, joined by Justices Clarence Thomas, Neil Gorsuch, and Brett Kavanaugh, released a statement on the court’s decision to not take up the case. While they did not dissent from the decision, Alito took note of the coach’s decision to not raise a free-exercise challenge against the school district.

“[Kennedy’s] decision to rely primarily on his free speech claims as opposed to these alternative claims may be due to certain decisions of this court,” he wrote. Alito specifically pointed to the court’s ruling in Smith as one that “drastically cut back on the protection provided by the Free Exercise Clause,” along with an employment-discrimination case in 1977. “In this case, however, we have not been asked to revisit those decisions,” Alito added. Justices often use dissents and concurrences to send signals about their interest in issues that aren’t directly before the court. The four-justice statement in Kennedy sent an unmistakable one.

The Roberts court, for its part, has carved out a muscular approach to religious-freedom cases, at least for non-Muslims. Earlier this term in Espinoza v. Montana Department of Revenue, multiple justices indicated that they might vote to strike down what are known as Blaine amendments, which bar some states from using public funds to support religious schools. Taking aim at Smith would also mark a potential sea change in how the courts scrutinize claims of interference with religious practices. For the court’s conservative justices, the road to get there puts them on a collision course with the legacy of one of the brightest stars in their ideological firmament.


* This piece originally stated that Scalia wrote the opinion for the plurality in Employment Division v. Smith.