In the wake of Justice Scalia’s passing, much is being made of the Justice’s faith, and some commentators are claiming that Constitutionally-protected religious freedoms are now under threat. Nothing could be further from the truth, as a close look at Scalia’s legacy shows the Justice weakened religious liberty by elevating monotheistic beliefs and practices over protections for religious diversity. In two upcoming cases, Scalia’s replacement should seize the opportunity to strengthen freedom of conscience by protecting the separation of church and state, and by refusing to allow the use of religion to harm others with different beliefs.
This week, presidential candidate Ted Cruz called Justice Scalia an “unrelenting defender of religious liberty,” and released a campaign ad that claims “life, marriage, religious liberty…we’re just one Supreme Court justice away from losing them all.” Numerous articles and statements from politicians and commentators have echoed this sentiment. In remembering the Justice, Marco Rubio stated “one of the greatest honors in my life was to attend oral arguments during Town of Greece v. Galloway and see Justice Scalia eloquently defend religious freedom.”
It’s important to note, however, that Town of Greece didn’t concern the right of an individual to practice religion in the face of government interference. Rather it bolstered the ability of the government to impose religion on its citizens. In the opinion, Scalia and four other justices held that beginning town board meetings with prayers, nearly all of which were led by Christian clergy and many of which contained explicitly Christian themes, did not violate the Establishment Clause of the First Amendment. To me, this sounds more like religious hegemony than religious freedom.
In fact, during his tenure Scalia repeatedly argued— typically in dissent— that the Establishment Clause forbids only government support for a particular religion, and not religion in general. In his McCreary County v. ACLU dissent he went further, claiming that the government may not only favor religion over secularism, but that “it is entirely clear from our Nation’s historical practices that the Establishment Clause permits” the endorsement of monotheism and the “disregard of polytheists and believers in unconcerned deities.” Far from promoting broad religious liberty, Scalia’s Establishment Clause opinions demonstrate that he was more interested in preserving the country’s historical support for Judeo-Christian practice and beliefs.
Scalia’s Free Exercise Clause opinions are perhaps even less protective of religious liberty. Notably absent from Cruz and Rubio’s comments was any mention of Scalia’s infamous opinion in Employment Division v. Smith, which has consistently outraged religious conservatives and led to the bipartisan adoption of the Religious Freedom Restoration Act (RFRA). That case held that the government need not accommodate the religious use of illegal drugs, and could constitutionally refuse to provide unemployment benefits to Native Americans fired for using peyote.
As he was pointedly reminded during the Hobby Lobby oral argument, Scalia wrote in Smith that the Free Exercise Clause did not require government-imposed burdens on religious exercise to be justified by a compelling interest, as such a rule would be “courting anarchy” and “open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind.” Such rigorous protection of religious practice, Scalia argued, “contradicts both constitutional tradition and common sense.” In light of the recent flood of religious exemption litigation, Scalia’s decision was thoughtful and prescient, but it was certainly not hailed as a boon for religious liberty. It also may have failed to take into account the ways in which seemingly neutral laws can negatively impact minority religions.
Finally, Scalia’s vituperative language in LGBT cases affirms that he was often motivated less by a concern for religious freedom in general than by support for particular religious beliefs. His Lawrence v. Texas dissent argued that sodomy laws had the rational basis of furthering the “belief of  citizens that certain forms of sexual behavior are ‘immoral and unacceptable,’” a belief that is of course rooted in a narrow understanding of religious morality not universally shared. He was the only other Justice to join in Thomas’s Obergefell v. Hodges dissent, which claimed that the decision had “potentially ruinous consequences for religious liberty.” This assertion ignored the fact that many religious groups in fact supported the right to same-sex marriage. While Scalia did not openly base these decisions in Christian doctrine, he seemed to evoke conservative religious reasoning while glossing over the diversity of religious belief on issues like same-sex relationships, contraception, and abortion.
Looking ahead, Scalia’s replacement will have the opportunity to have an immediate impact on the court in ways that may in fact preserve religious liberty for everyone by strengthening the protections of the Establishment Clause and protecting religious minorities from majoritarian doctrine. In the upcoming Trinity Lutheran Church v. Pauley, the court will decide whether or not a state is required to provide funding to a church as part of an otherwise neutral grant program. Scalia would have been a sure vote for the Church based on his belief that the government cannot withhold benefits solely based on religion, as he articulated in his Locke v. Davey dissent. A Justice with a more encompassing understanding of religious freedom should find that the government need not, and perhaps even cannot, provide funding directly to a Church. Such a holding would show a deeper respect for religious pluralism, including non-believers.
In Zubik v. Burwell, Scalia would likely have expanded upon his Hobby Lobby vote, and held that a religious company can permissibly cut off its employees’ access to contraceptive coverage. His replacement should find that using one’s religious beliefs to harm others, who may not share those religious beliefs, violates the Establishment Clause guarantee that the government not favor any particular religion or religion in general.
A hard look at Scalia’s opinions demonstrates that he held greater concern for the preservation of conservative, monotheistic beliefs and traditions than for religious liberty more broadly. Our next Justice should be a true defender of religious liberty by showing respect for a diversity of beliefs, and by refusing to permit religious actors to force their practices on those that do not share them.