Justice Antonin Scalia will be remembered as a towering figure on the U.S. Supreme Court for his intellect and his wit but not as a friend to religious liberty and the separation of church and state, a Baptist church-state expert said Feb. 20 in a radio interview.
Brent Walker, executive director of the Baptist Joint Committee for Religious Liberty assessed the legacy of Scalia — who died of natural causes during the night of Feb. 12-13 while on a quail-hunting trip in Texas — on State of Belief Radio with host Welton Gaddy.
Gaddy, retired executive director of the Interfaith Alliance and pastor of preaching and worship at Northminster Church in Monroe, La., asked Walker, a long-time friend, about the “constitutional originalism” that characterized Scalia’s 30 years on the high court.
“I think it’s been damaging, to tell you the truth,” said Walker, who has worked at the Baptist Joint Committee 27 years and as its leader since 1999.
“Justice Scalia’s thinking on the two clauses in the First Amendment that protect religious liberty — no establishment, that government can’t try to help religion; free exercise, that government shouldn’t try to hurt religion — he watered both of those down and pretty much deferred to the will of the majority rather than upholding the rights of the minority as many of us think the First Amendment was intended to do,” said Walker, both an ordained minister and attorney.
Walker said Scalia “led the charge” in the 1990 Employment Division v. Smith decision “that pretty much gutted the protections in the free exercise clause.”
“It used to be that government had to show a compelling interest before it would be allowed to interfere with the free exercise of religion,” Walker said. “Under this new regime that he came up with, as long as the law is facially neutral and generally applicable, then government can pretty much do what it wishes.”
“It means that our religious liberty is in jeopardy,” Walker explained. “Fortunately the Congress then came and passed the Religious Freedom Restoration Act and other legislation — some of the states did — to restore that high level of protection, but as a matter of constitutional interpretation he very much weakened the protections there for free exercise and for religious minorities.”
When it comes to the First Amendment clause that prohibits the government from passing any law “respecting an establishment of religion,” Walker said Scalia “never saw an establishment case that he really liked.”
“Whether it was Ten Commandments or state-sponsored school prayer or Nativity scenes or dollars for religious education, he was OK with that,” Walker said. “He really wanted to lower the wall of separation between church and state.”
Walker said Scalia’s absence “could have a very significant impact” on upcoming religious liberty cases that end in 4-4 ties but otherwise would have been 5-4 with Scalia in the majority.