With primaries already under way, the future of religious freedom is one of many significant issues at stake in the upcoming presidential election. This week Cornerstone asks contributors to comment on how our new president could shape religious freedom policy by reflecting on the following questions: What are the various candidates’ records on religious freedom within the United States and around the world? What domestic and international religious freedom issues are candidates likely to prioritize, and how important are these issues to voters? 

By: Matthew Quallen

On February 13, news of Antonin Scalia’s death hit the Republican Party like a thunderbolt. Racing out of Texas, the news stunned the would-be Republican nominees, who observed a moment of silence during a debate that same night. The death of the conservative jurist jolted a sleepy senate to life: within hours, senators left and right cast the opening salvos in what promises to be a nasty fight over the balance of the Supreme Court. That fight pushes on, gathering steam. And while the hurly-burly intensifies, pundits on both sides breathlessly analyze exactly what is at stake: major decisions on abortion, affirmative action, unions, Native sovereignty, religious freedom, and districting during the Court’s current term alone. As some candidates tell it, until and unless a neo-Scalia takes a seat on the bench, the Court’s fidelity to the constitution is blowing in the wind. 

And yet, with so much at risk, the question of religious freedom has never moved far from the Republican candidates’ lips. In last Thursday’s Republican debate, moderator Hugh Hewitt asked Donald Trump whether he would consider support of religious freedom a litmus test for judicial nominees (in the past such a role had been reserved for a desire to overturn Roe v. Wade.) Trump replied that he would. Senators Cruz and Rubio expressed their doubts, attempting to skewer the real-estate-developer-turned-political-rival’s conservative credentials. Cruz and Rubio positioned themselves as the candidates who would appoint true defenders of the constitution, like Justice Scalia—justices who would uphold vigorous protections for religious liberty. After all, as Cruz explained only two weeks earlier, at the previous Republican debate, “We are one justice away from a Supreme Court that would undermine the religious liberty of millions of Americans.”

Sort of. Justice Scalia joined the five-four majority in Burwell v. Hobby Lobby, the 2014 case that struck down a Health and Human Services regulation providing a limited accommodation for employers objecting to providing contraceptive coverage. But Hobby Lobby was not a case about the constitution. Instead, it concerned a federal law called the Religious Freedom Restoration Act, or RFRA, to which the Court gave a bitingly strong interpretation—the Court in Hobby Lobby ruled that, under RFRA, the government had to provide religious accommodations to the objecting employers. And the Court ruled that the accommodation formulated by HHS was insufficient. This was enough to endear Scalia, long a conservative darling for his sharp prose and Catholic tilt, to religious freedom advocates.

But Justice Scalia had a much more checkered record on constitutional protections for religious freedom. In fact, RFRA, which became law in 1993, was a national rebuff of Scalia’s views on the constitution’s protections for religious freedom.   Rewind to 1990. The state of Oregon, fighting the national war on drugs, had withheld employment benefits from a group of Native Americans convicted of Peyote use. Those natives, who argued that Peyote use was an essential component of their religious practice, sued Oregon, arguing that it had no right to proscribe their religiously inspired conduct. That case, Employment Division v. Smith rebounded between state courts and the United States Supreme Court until 1990, when the Court issued a definitive ruling.

The Court’s ruling, anchored by a majority opinion authored by Justice Scalia, rejected the argument put forward by the natives. It held that religious beliefs could not exempt or excuse religious believers from laws applicable to all—laws of general applicability. To rely on Justice Scalia’s own words:
 

They [the natives] assert, in other words, that ‘prohibiting the free exercise [of religion]’ includes requiring any individual to observe a generally applicable law that requires (or forbids) the performance of an act that his religious belief forbids (or requires). As a textual matter, we do not think the words must be given that meaning.

The ruling produced instant uproar, and several dissents—all from more liberal justices. Congress responded to the Court’s ruling by passing a law that insisted on almost the exact opposite interpretation—RFRA (here’s where the act’s second “R,” which stands for “restoration,” comes from.) RFRA states that “government shall not substantially burden a person’s exercise of religion even if the burden results from a rule of general applicability.” RFRA sought to undo what the Court behind Scalia’s pen had done inEmployment Division v. Smith.

So can Antonin Scalia be called a defender of religious freedom, and has his death really cast religious freedom into jeopardy? It’s hard to say. Certainly Scalia never gave religious freedom constitutional teeth during his tenure; he led the Court as it defanged the first amendment’s protections for religious liberties against laws of general applicability in Employment Division v Smith. And yet, he gave a vigorous reading to the law that sought to blunt that damage done by that decision, RFRA. 

Scalia’s outlook on religious freedom, which varies with time, the beliefs of those claiming exemptions, and the basis on which they are claimed—whether statutory or constitutional—at minimum complicates the question of what a “litmus test” on religious freedom would look like. What exactly would a candidate ask a prospective judicial nominee? At maximum, Scalia’s outlook shines a light on the essential difference between the constitutional and statutory fabric of American liberties. Religious freedom advocates lost at the Court, but won in Congress, fashioning with RFRA a new statutory regime the Court could take at its word. Perhaps attention from the Republican candidates, eager to burnish their religious freedom credentials, would be better focused on lobbying Congress and finding a judicial nominee sympathetic to strong congressional protection for religious freedom than seeking out judicial nominees who believe such protection emanates from the first amendment—a rare breed in the wake of Employment Division v. Smith. 

Matthew Quallen graduated from Georgetown’s School of Foreign Service in 2016 with a major in international history. 

This piece was originally authored on March 2, 2016 for the Religious Freedom Project at Georgetown’s Berkley Center for Religion, Peace, and World Affairs.