To many principled Originalists and proponent of religious liberty, the opinion in Employment Division v. Smith poses a puzzle. Many commentators believe Smith contradicts the original meaning of the Free Exercise Clause and hinders the right to religious freedom. Yet it was written by Justice Scalia, a self-professed Originalist and lion of the law. I attempt to resolve this puzzle, reviewing Justice Scalia’s speeches and opinions on religious liberty. Ultimately, Justice Scalia’s opinion in Smith reflects his commitments to certain jurisprudential principles. Viewing these principles in the light of New Originalism, though, it becomes clear how Smith most likely does not stand up to later refinements in Justice Scalia’s own originalist thinking.
Amul R. Thapar,
Smith, Scalia, and Originalism,
Cath. U. L. Rev.
Available at: https://scholarship.law.edu/lawreview/vol68/iss4/10