Sunday, February 14, 2016
I've seen some commentary in which the writers suggest that, because he was the author of the Smith decision, Justice Scalia's work and legacy should not be seen as friendly to religious freedom. This line strikes me as glaringly wrong: Putting aside the fact that Justice Scalia was in the Court majority that moved away (in cases like Agostini, Mitchell, and Zelman) from an unsound and unwise form of "strict separationism" in funding cases, he was also with the Justices who upheld the religious-accommodation or antidiscrimination claims in (for example) Lukumi, O Centro, Cutter, and Hobby Lobby.
His absence will, I fear, make a difference -- and not for the better -- in the pending Little Sisters and Trinity Lutheran cases. It could well be -- and again, this is most unfortunate -- that the change to bury a rule that (paraphrasing Justice Thomas) was "born of bigotry" (that is, the Blaine Amendment-type bans on evenhanded support for students in religious schools) is gone for another generation.