Justice Scalia, Religious Freedom, and the First Amendment

Abstract

When Justice Antonin Scalia died last February, the Supreme Court and the country lost a distinctive, engaging, and compelling voice. Justice Scalia’s voice and views were particularly important and influential in cases involving the First Amendment and religion.

Justice Scalia’s many academic critics tend to regard his understanding and approach as dangerously “majoritarian” and insufficiently sensitive to and protective of the rights of vulnerable, unfamiliar, or unpopular religious minorities. In my view, however, Justice Scalia’s approach is better seen as reflecting well an appropriate — indeed, the judicial virtue of — humility with respect to judges’ ability and authorization to determine the policy implications of abstract political theories, to resolve reasonably contested moral questions, to eliminate divisiveness and offense from public discourse and the public square, and — most important, perhaps — to construct and apply rules that depend on mind-reading and speculations about psychology. Justice Scalia’s Religion Clauses jurisprudence, in other words, is not so much about majoritarianism as it is about “institutional competence, comparative advantage, federalism, and the limits of judicial review.”

Keywords: Supreme Court of the United States, SCOTUS, Antonin Scalia, Religious Liberty First Amendment, Religious Freedom, Free Exercise Clause, Establishment Clause

JEL Classification: K10, K19