Justice Antonin Scalia usually let his opinions speak for themselves, but he was so irked by criticism of one of his religious liberty rulings that he wrote a private defense of his reasoning, according to an unsealed court document obtained by “Seen, Heard & Whispered.”
The case was Employment Division v. Smith, where Scalia led the court’s majority in rejecting a pair of drug counselors challenging the denial of unemployment benefits after they were fired for ingesting peyote, a powerful hallucinogen. They said they used it as part of their American Indian faith and argued the denial was punishment for religious beliefs.
Scalia, though, said that it doesn’t run afoul of the First Amendment for a state to pass and uphold neutral laws applicable to all — even if it might ding someone’s religious practice.
A decision the other way would have been “courting anarchy,” Scalia wrote to Judge Thomas J. Aquilino Jr. of the U.S. Court of International Trade on May 25, 1990, just weeks after the decision was issued.
“We have never held that an individual’s religious beliefs excuse him from compliance with an otherwise valid law prohibiting conduct that the State is free to regulate,” he wrote.
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The communication was unearthed in the justice’s papers at Harvard Law School. It’s a signed letter on official chambers stationery.
The ruling drew sharp criticism from religious-liberty advocates and conservatives who had backed Scalia’s nomination to the high court.
The justice was defending the Smith decision in a reply to Judge Aquilino, who had previously voiced disagreements over it.
“You should tell your students that there is a difference between demolishing a building and clearing up rubble that someone might trip on,” Scalia wrote.
James Rosen, chief Washington correspondent at Newsmax, discovered the letter while researching his final installment in a three-volume Scalia biography he is currently compiling.
“Scalia: Rise to Greatness, 1936 to 1986” was released in 2023, and “Scalia: Supreme Court Years, 1986 to 2001” was published in February. Mr. Rosen has the third volume in the works.
“Rarely did Justice Scalia defend his judicial opinions in his correspondence,” Mr. Rosen said.
“This letter captures Scalia fully confident that his decision was the right one: a bright-line ruling of the sort he believed the justices should be providing to lower courts, offering them guidance to adjudicate similar cases on their own.”
In “Scalia: Supreme Court Years,” Mr. Rosen wrote evidence that the justice in his final days had some doubts about his decision in Smith. Scalia died while on a hunting trip to Texas in 2016.
Mr. Rosen quoted a former Harvard Law classmate as having told him in an interview that in 2015, Scalia said: “I have really got to seriously consider the effects of that decision … I’m really reconsidering it.”
