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11/04/2020

James Phillips on Fulton v. Philadelphia
Michael Ramsey

At Newsweek, James Phillips (Chapman): Correcting Scalia's Biggest Mistake. From the introduction:

Justice Antonin Scalia was a legal maestro. But maestros are human. And humans make mistakes. ... [I[n Fulton v. City of Philadelphia [oral argument today], the Supreme Court can begin to correct what is arguably Scalia's biggest mistakeEmployment Division v. Smith.

In Smith, writing for the Court, Scalia rejected the religious liberty claims of two Native Americans. They had been fired from their jobs for using peyote—a hallucinogenic drug—during a Native American Church service. More significantly, Scalia essentially wrote that when a law is neutral and generally applicable, religious liberty must give way.

Otherwise, he feared anarchy would result. And he worried about giving judges too much discretion to balance religious liberty claims with governmental interests. Instead, Justice Scalia declared that religious liberty could be protected by majorities through elected leaders. Ironically, as the intellectual godfather of modern originalism, the justice did not look to the Free Exercise Clause's original public meaning in his analysis.

As Professor Phillips notes, Scalia was oddly coy in Smith, saying only that the plaintiffs had not proved the original meaning of the free exercise supported them.  This leaves an opening for the current Court's originalists to vote to overrule Smith: if new evidence is offered (and there has been a lot of academic writing against Smith's conclusion since that decision) perhaps they can justify a different outcome based on new evidence.  I don't think Fulton is the case that will overrule it, but I wouldn't be surprised if at least one concurring originalist Justice calls for reexamining Smith.

(And Scalia's biggest mistake was actually Boyle v. United Technologies Corp.)