PORTLAND, Ore. — Despite his reputation as a conservative, U.S. Supreme Court Justice Antonin Scalia says he has played a centrist role in religion cases since he was appointed to the high court in 1986, siding with the majority most of the time.
“At least I have been centrist by my own low standards,” Scalia joked, adding that “the center is wherever the people staking out the two extremes cause it to be.”
Scalia on April 12 packed humor and legal analysis into a keynote address to an enthusiastic and largely Roman Catholic crowd of several thousand students, lawyers, scholars and priests at the University of Portland to open a two-day conference titled “The American Experiment: Religious Freedom.”
He noted that he dissented on constitutional grounds in only eight of the 30 cases involving the religion clauses of the U.S. Constitution since he joined the Court.
The First Amendment states that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof.”
Both clauses appear straightforward, but Scalia said the Court has struggled to interpret them over the years.
He said that, among the eight dissenting opinions he filed, the case “that most distressed” him was Texas Monthly Inc. v. Bullock, a dispute over a sales tax exemption for religious magazines and books in Texas.
The Supreme Court rejected the exemption under the establishment clause, making it a case “that in my estimation strayed farthest from what I consider the proper methodology,” Scalia said.
He said such exemptions existed in many states at the time, possibly all the states, but the case was not decided “by considering the long accepted practices of the American people.”
Instead, the case was decided by what Scalia called a “formulaic abstraction” created by a ruling in another case, Lemon v. Kurtzman.
“The test says that a law or governmental practice violates the establishment clause if it has either the purpose or the effect of favoring not just one religious sect over another, not just one denomination over another, but if it has the purpose or effect of favoring religion in general over nonreligion,” Scalia said.
He said the Lemon test deserves its name because it fails to take tradition into account.
“When, as I say, one of these judicially crafted abstractions comes up against a long-standing tradition that contradicts it, it is the abstraction and not the tradition that must yield,” Scalia said.
Drawing laughs, he added: “I don’t think anybody checks up on whether sales taxes are paid on the publications sold in the vestibule of my church.”
He also said a court test for the other religion clause — the free-exercise clause — developed in a case called Sherbert v. Verner, followed the same pattern as the Lemon test.
The ruling in Sherbert said that free exercise of religion “is denied whenever an individual is compelled to obey a law that contradicts his religious beliefs unless there is a, quote, ‘compelling state interest in enforcing that law,’” Scalia said.
“Now I have nothing against formulaic abstractions — otherwise known as rules,” Scalia said. “They’re the means by which judicial arbitrariness is checked. But unless it is thought that the most fundamental laws of our society were meant to be made up by judges, these formulaic abstractions ought to be rooted in, ought to be derived from, the text of the Constitution, and where that is in itself unclear, the central practices that the text represents.”
Scalia noted the Sherbert test has been supplanted by subsequent rulings, including his majority opinion in 1990 in Employment Division v. Smith, in which the Court ruled the state of Oregon did not violate the free-exercise clause of the First Amendment by prohibiting an American Indian from using illegal peyote in a religious ceremony.
Scalia called his method for deciding whether tradition sometimes holds sway over the law “the Shakespeare principle.”
He recalled a high school literature class in New York, when one of his classmates offered criticism of a Shakespeare play that the teacher, a Jesuit priest, found less than compelling.
Prompting laughs and applause, Scalia said the priest told his classmate: “Son, when you read Shakespeare, Shakespeare’s not on trial, you are!”