Scalia's Christian Visions

As efforts are made to assess the legacy of Justice Antonin Scalia, who died last month, pundits have avoided discussing the one decision that stands as the biggest enigma in his corpus of largely conservative judicial decisions: Employment Division v. Smith, the historic case that repudiated the existence of a free exercise right to religious accommodation. Today, religious accommodation is championed by religious conservatives, who usually counted Justice Scalia as a friend, but remain mystified by what they perceive as his betrayal in Smith. The backlash against Smith, which outraged both liberals and religious conservatives at the time it was handed down in 1990, led to the unlikely political coalition between civil libertarian organizations and conservative religious advocacy groups that brought us the Religious Freedom Restoration Act (“RFRA”), the statute that supplied the basis of the controversial Hobby Lobby decision. That 2104 decision, which Justice Scalia joined, recognized the right to religious accommodation claimed by a family-owned business that objected to including coverage for contraception in its employee health insurance plan as required by the Affordable Care Act.