Scalia’s Legacy Is Great, But Don’t Forget The Bind He Left Us In

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This month, the Federalist Society held its annual convention in Washington, D.C., where several of the judges being considered by President-Elect Donald Trump for a Supreme Court nomination had a chance to reflect on Justice Antonin Scalia’s legacy.

Justice Antonin Scalia

It would be wrong to deny that Scalia changed the American legal system. But he unfortunately also sacrificed religious liberty for a single instance of anti-drug law enforcement. The case of Employment Division v. Smith shows how Scalia’s principles buckled under the weight of his desire to enforce anti-drug laws, eventually leading to Obama’s attempted upheaval of religious liberty in Zubik v. Burwell.

Setting the Precedent

In Employment Division v. Smith, Alfred Smith and Galen Black, drug counselors and members of the Native American Church, were denied unemployment benefits after being fired for smoking peyote. The denial of benefits was further complicated by the question of religious freedom: peyote use is the spiritual centerpiece of the Native American Church.

The purpose of enforcing the law against the Little Sisters of the Poor was to declaim to all the country that no religious objection was good enough to outweigh even the smallest progressive prerogative.Scaliaphiles of a younger generation might be shocked to read the late Justice’s severe justification for upholding the ban on sacramental Peyote use. Writing the opinion on behalf of a Court majority, he held that “[t]he Free Exercise Clause of the First Amendment protects the right of individuals to believe whatever they wish, but does not necessarily protect the right to act on those beliefs.”

Nobody should have been surprised, then, that in Zubik v. Burwell the Obama administration, through the Solicitor General’s office, relied on Employment Division v. Smith in seeking to collect massive fines from the Little Sisters of the Poor, a Catholic anti-poverty charitable organization.

The Sisters refused to pay for, or even tacitly support, the use of contraceptives or abortifacients, whether by directly funding the devices through contribution to healthcare plans or by signing waivers signaling complicity towards their use. For the Sisters, complicity in sin was a transgression on equal footing with sin itself. Absurdly, the Obama administration demanded that the Sisters either sacrifice their beliefs or pay the statutorily required $70 million fine.

Despite 50 Catholic theologians signing on to a highly persuasive brief enunciating their terms of objection to the coerced birth-control funding scheme, the Obama administration persisted. At the Zubik oral argument, the now-eight-member Court quizzically asked why the President wanted so badly to punish these principled objectors. The Obama administration’s play at squashing the Catholic conscience seems especially ridiculous when one considers that birth control can be purchased for as low as $15 per month.

But for Obama, the price of contraceptives and abortifacients could never be low enough, and is even beside the point. The administration’s legal position was never about the price of the devices. Rather, the purpose of enforcing the law in such an inconsequential circumstance was to declaim to all the country that no religious objection was good enough to outweigh even the most trifling progressive prerogative.

Filling Scalia’s Shoes

The next nominee will sit in the same seat that Justice Antonin Scalia occupied for nearly 30 years. Since any future Justice may serve for just as long, they will have a chance at permanently changing American jurisprudence and culture.

So if that future occupant wants to leave a legacy on par with Scalia’s, he or she must stick to their principles in a way that Scalia himself, who admitted to being a “faint-hearted originalist,” did not.

At the already-mentioned Federalist Society convention, a prominent liberal-leaning professor named William Marshall remarked that his defense of the Scalia opinion in Employment Division v. Smith was truly “a delicious irony,” given its authorship. But for those who value the autonomy of the individual over the hegemony of the state, there is nothing delicious at all.

That this legacy was written in the words of a man who might reconsider the judgment of his former self is, instead, quite bittersweet.

Alex Grass

Alex Grass is a Young Voices Advocate and a student fellow at the Floersheimer Center for Constitutional Democracy at Cardozo School of Law.

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Scalia's Legacy Is Great, But Don't Forget The Bind He Left Us In

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