An unsealed letter shows Justice Antonin Scalia privately doubling down on the Smith ruling’s hard line: no religious exemptions from neutral laws.
Story Snapshot
- A newly surfaced Scalia letter shows fierce private support for the 1990 Smith decision.
- Scalia’s opinion said religious belief does not excuse obeying neutral, general laws.
- Critics on the right and left say Smith gutted free exercise protections.
- Congress answered Smith with the Religious Freedom Restoration Act three years later.
What the Unsealed Letter Adds
The Washington Times reports that a biographer found an unsealed letter from Justice Antonin Scalia to law professor Nadine Strossen, showing his fierce defense of the Supreme Court’s 1990 ruling in Employment Division v. Smith. The report does not publish the full text or date of the letter. That gap limits how far we can read into tone or timing. Still, the letter matters because it offers direct evidence of Scalia’s private resolve behind his public opinion.
In 1990, Scalia wrote the Court’s opinion in Smith. The case held that the Free Exercise Clause does not require exemptions from neutral, generally applicable laws. Scalia stated, “We have never held that an individual’s religious beliefs excuse him from compliance” with valid laws that states may enforce. The letter’s reported stance tracks that view. It suggests Scalia saw the ruling as faithful to long-standing law, not a break with tradition.
Scalia’s Core Legal Logic in Smith
Scalia argued that judges should not probe the “centrality” of a person’s religious belief. He said that would be like courts judging the “importance” of ideas in free speech law, which would be a “constitutional anomaly”. He wrote that more than a century of free exercise cases rejected a right to exemptions from neutral laws. This reading put the burden on lawmakers, not judges, to craft religious accommodations across the country.
The decision was 6–3. Justice Sandra Day O’Connor agreed with the judgment, but not all of the reasoning, showing partial consensus at the time. Supporters say that count undercuts claims that Smith was fringe. Detractors counter that the split, and O’Connor’s separate writing, show the legal ground was already shaky. The letter’s new detail adds color but does not change that historical record.
Why Smith Sparked Lasting Backlash
After Smith, critics from churches, civil libertarians, and some conservatives argued the Court weakened religious liberty. Conservative scholar Michael Stokes Paulsen called Smith “dreadful” and a “constitutional disaster,” saying it reversed decades of doctrine without owning up to it. The pushback crossed party lines because many Americans, right and left, fear a system that is too rigid to protect conscience. They worry both major parties ignore ordinary people’s deepest beliefs.
Congress answered in 1993 with the Religious Freedom Restoration Act. Lawmakers tried to restore a “compelling interest” and “least restrictive means” test when the government burdens religion. That statute directly responded to the Court’s move in Smith, signaling that elected officials felt stronger protections were needed. Later cases narrowed how far that federal law could reach, but the political message was clear.
How the Letter Lands in Today’s Divide
Scalia framed Smith as judicial humility. Courts would stop handing out case-by-case exemptions. Voters and lawmakers would decide where to draw lines. Many Americans see a risk there. They fear that elites write “neutral” rules that still hit people of faith hardest. Others worry the opposite, that broad exemptions let the powerful dodge rules everyone else must follow. The letter revives this core tension: who guards liberty, judges or politicians?
The record is mixed today. Several conservative justices have since questioned Smith’s wisdom, showing the ruling’s support has eroded on the right. At the same time, many states passed their own Religious Freedom Restoration Acts, adopting the compelling interest test at the state level. The unsealed letter does not settle that debate. It does, however, confirm that Scalia never saw Smith as a retreat. He saw it as staying true to the Constitution’s text and history.
Sources:
scholarship.law.campbell.edu, constitutioncenter.org, judicature.duke.edu, supreme.justia.com, youtube.com
