“Religious Liberty After Scalia” -David Forte in The Federalist Society Online

by James Wilson Institute on May 9, 2016

Prof. David Forte, a dear friend of the James Wilson Institute,  contributed to the Federalist Society’s online blog post titled, “Religious Liberty After Scalia.”  Prof. Forte argues that despite criticism Justice Scalia had been a true defender of religious liberty, and his death will put he fight for religious liberty in peril.

“Some people opine that Antonin Scalia was not a friend of religious liberty, and that after his departure, religious liberty in America is no more at risk than it was before. They are wrong. Without Justice Scalia, religious liberty is in peril.

“True, Justice Scalia was the author of and enthusiastic apologist for Employment Division v. Smith (1990), which held that any generally applicable law, not otherwise specifically directed at a religious practice, but that nonetheless impedes an adherent’s religious practice, is valid, the Free Exercise Clause notwithstanding.  Vigorously defending it on originalist grounds against subsequent attacks by Justice O’Connor in City of Boerne v. Flores (1997), Scalia made Employment Division v. Smith a well-established precedent, which has stood now for a quarter of a century.”

“Nonetheless, the continuing influence of the Lemon Test and the allied Endorsement Test of Justice O’Connor continues to constrain governmental recognition of the religious voice in the public square.  Prayer has been wiped clean (at least officially) from schools and school activities (Lee v. Weisman (1992)(5-4), Scalia dissenting), crèches and religious monuments still have a hard time of it (McCreary County v. ACLU of Kentucky(2005)(5-4), Scalia dissenting), and the Blaine amendments have been given new recognition (Locke v. Davey (2004)(7-2), Scalia dissenting).  This year, state Blaine amendments are back before the Supreme Court (Trinity Lutheran Church of Columbia, Inc. v. Pauley, and Douglas Cnty. School Dist. v. Taxpayers for Public Education), but Scalia is missing.”

Read the whole piece here.