In another article for The Catholic Thing titled “The Enduring Scalia,” Prof. Hadley Arkes, founder and director of the James Wilson Institute, continues his critique of the “subjectivizing” of conscience and religious objection. He analyzes Justice Antonin Scalia’s famous opinion in Employment Division v. Smith (1990). Prof. Arkes defends Justice Scalia as inviting the Religious Freedom Restoration Act (RFRA) rather than repudiating RFRA. On the contrary, argues Arkes, Scalia’s position that the people, through legislators, are more apt than judges to determine which interests are “compelling” was not only correct before RFRA, but still in harmony with it today.
Some quotes from the article:
“As Scalia understood, it was quite beyond the rightful competence of judges to pronounce on such questions. But the Justice ran through a long list of cases, from the grand to the prosaic, that refused to admit a religious ground of exemption from laws thought to be thoroughly defensible, for the religious along with everyone else.”
“Legislatures may work out accommodations with the religious, on terms that turn out to be defensible or indefensible, and Scalia far preferred to see the matter resolved in that way. That was far better than having judges invoke a “constitutional right” with a sweeping exemption from all manner of laws for any “beliefs” that are claimed to be ‘religious.'”
“As Scalia understood, only a deep principle of law should override that judgment. Absent that, matters should not hinge on what an unelected judge regarded, in any case, as a policy “important” enough to elicit her respect….And so, the secret that hasn’t quite broken through: Scalia had it right in Smith, and still has it right, even with the Religious Freedom Restoration Act on the books.”
You can read the full article here.