Antonin Scalia in 2010 (Kevin Lamarque/Reuters)

A response to James Phillips and John Yoo

James Phillips and John Yoo continue to maintain that Justice Antonin Scalia got the Constitution wrong on religious liberty — and that I am in error, too, in defending the late justice’s bottom-line conclusion. Phillips and Yoo preface their latest post with some unnecessary but much-appreciated kindness toward me, and I will gladly return the sentiment.


But even a friendly disagreement can contain mutual misunderstandings. Phillips and Yoo say that I have mistaken their position: They are not unqualified supporters of the view that the Supreme Court took between 1963 and 1990 of the right to free exercise of religion, and don’t think that view fully captures the original understanding of the First Amendment. As far as I can tell, though, their disagreement with the Court’s jurisprudence during that period does not touch our main dispute. They think that the constitutional guarantee of free exercise requires judges to exempt religious believers from laws that burden their faith. That’s the key point on which they agree with the 1963–90 Court and disagree with Scalia’s 1990 opinion in Employment Division v. Smith. In that case, Justice Scalia denied that free exercise required an exemption to the drug laws for the ritual use of peyote.

The main (and nearly only) point of my previous comment was that we should be skeptical of the idea that the Constitution as originally understood required judges to make exemptions to laws for religious believers, given that courts did not make such exemptions until the Warren Court. Phillips and Yoo advance several arguments to overcome that skepticism but, in my view, they do not succeed.


They note that Michael McConnell has argued that the original understanding was more consistent with judge-made exemptions than with Scalia’s view, but also note that other scholars, such as Philip Hamburger, dispute McConnell. I’d add Gerard Bradley and Vincent Phillip Muñoz to Hamburger’s side of the argument. I’d conclude that there is no scholarly consensus and that, again, the fact that the Supreme Court didn’t hint at the judicial-exemptions interpretation of the First Amendment before 1963 is a reason to side with Scalia, Hamburger, et al.

Phillips and Yoo assert that James Madison viewed the free-exercise clause “as providing religious exemptions” — a point that Muñoz has contested, and that also does not quite establish that judges would be the ones tasked with providing those exemptions.



They cite, additionally, the debate in the First Congress between Representatives John Page (Va.) and Theodore Sedgwick (Mass.). Sedgwick had said the Bill of Rights did not need to specify the existence of a right to assembly, any more than it had to specify a right to wear hats; Page replied by alluding to William Penn’s prosecution in England for refusing to remove his hat in court, a refusal rooted in his Quaker faith. Page carried the day — the right to assembly is in the First Amendment — and Phillips and Yoo treat it as evidence that the Founders supported religious exemptions. Under Scalia’s doctrine, they claim, a law requiring the wearing of hats in court would have to be applied to a religious objector.

This does not seem like much to hang an argument on. For one thing, the Page–Sedgwick exchange doesn’t imply anything at all about whether judges or legislators should be responsible for carving out any necessary religious exemptions — which is not surprising, since religious exemptions were not its subject. For another, if Phillips and Yoo are right about the import of the exchange, then Page’s example undermines his position. If a religious exemption from a law governing hats were already implied by free exercise, that would be a reason not to specify a right to wear hats.

Phillips and Yoo write,

Ponnuru says that the lack of the Supreme Court requiring accommodation before 1963 shows that could not be the original meaning. By that logic, the fact that it wasn’t until 2008 before the Court found the Second Amendment contained an individual right to bear arms means that could not be the original meaning.

They add that the Court may not have stated that the original meaning required judge-made exemptions because it had no occasion to do so: The growth of government and the “incorporation” doctrine created many more occasions.

Their paraphrase overstates what I said, which was only that the Court’s failure to adopt this interpretation of the First Amendment until 1963 should make us skeptical that it’s part of the original understanding. Evidence and argument can of course overcome that skepticism, and Justice Scalia provides both in copious amount in D.C. v. Heller, the 2008 Supreme Court decision on guns. (“The 19th-century cases that interpreted the Second Amendment universally support an individual right unconnected to militia service. . . .”) Phillips and Yoo say that they cannot provide all the evidence for their view of free exercise in a post, which is fair enough; but I doubt that anything comparable to the range of evidence Scalia adduces in favor of the individual right to own guns in Heller is available to them.


Their view also has some cases to explain away. I originally noted that an 1879 case, Reynolds v. United States, upheld polygamy laws against a free-exercise challenge. Phillips and Yoo say that this is “the oldest evidence” I have for the Scalia view. That’s not quite right, since I have two pieces of evidence that go further back. First, there’s the absence of any Supreme Court decision or even dicta in favor of exemptions from the ratification of the Constitution until 1963. Second, there’s America’s robust tradition of legislated religious exemptions, such as exemptions from conscription.


Phillips and Yoo discount Reynolds on the ground that denying an exemption from polygamy laws does not entail denying that judges should make exemptions at all. While that point is sound as far as it goes, they are understating the difficulty this decision raises for them. The Reynolds Court, to the extent it contemplates such exemptions, is hostile to them, at least with respect to the criminal law. To follow the logic of such exemptions, it says, would be “in effect to permit every citizen to become a law unto himself.” Doubtless that is why Scalia quoted that language in the 1990 decision to which Phillips and Yoo (and many like-minded observers) object.

Reynolds also casts doubt on the Phillips–Yoo explanation for the absence of any Supreme Court decisions taking the exemptionist position before 1963. The polygamy case gave the Court an opportunity to say that judges sometimes have to afford religious believers exemptions. It had that opportunity even though we had a much smaller federal government and no incorporation. Or consider the two flag-salute cases from the 1940s that I mentioned in my last post. The Supreme Court first ruled against the religious objectors and then ruled for them, but neither time suggested that exemptions are ever constitutionally required.

Phillips and Yoo fault Scalia because he “failed to do an originalist inquiry” in Smith, the 1990 case. That’s a fair criticism. It may also be, as Matthew Franck argues in a forthcoming essay, that Scalia’s understanding of free exercise in that case fails to provide enough protection for religious liberty. Franck’s case is very different, though, from the familiar criticism of Smith: He shares Scalia’s opposition to judge-made exemptions but notes that Scalia ignores the possibility that some laws that place burdens on religious liberty may need to be set aside entirely even if those laws are not motivated by hostility to free exercise.

But a Supreme Court opinion should be forgiven many faults if it both reaches a decision and announces a rule that is in accord with the original understanding of the Constitution. In Smith, Scalia decided against the religious dissenters and ruled out judge-made exemptions for religious believers. I am still inclined to say that he was right on both points.