I've already touched on this, but social conservatives still seem to cling to the notion that Antonin Scalia was a defender of religious liberty, as witness Dreher's response, "I find this encouraging," to Trump's saying: "And I will appoint Justices to the Supreme Court who will strictly interpret the Constitution and not legislate from the bench, like Justice Clarence Thomas and the late and beloved great Catholic thinker and jurist, Justice Antonin Scalia."
Seriously? If I were a religious SoCon, Scalia would be anathema to me, because of his decision in Employment Division v. Smith, in which the Supreme Court overruled decades of precedent, returning to 19th Century principles to declare that "It may fairly be said that leaving accommodation to the political process will place at a relative disadvantage those religious practices that are not widely engaged in; but that unavoidable consequence of democratic government must be preferred to a system in which each conscience is a law unto itself or in which judges weigh the social importance of all laws against the centrality of all religious beliefs." Despite this, Dreher has repeatedly held Scalia up as a jurist to be emulated, even naming him ""Scalia il Magnifico", blaming liberals for the politicization of religious accommodation issues, when the liberals on the Court dissented in Smith.
Is this cognitive dissonance? Refusal to acknowledge that one so obviously on Dreher's side of what Scalia himself called a Kulturkampf could so have fouled their shared nest, thinking that they would have the political upper hand forever?
Or, more sinisterly, is it because Dreher assumed that the rule of Smith would be limited to the Native American Church involved in Smith, and not to "real" religions, such as his and Scalia's own?
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The further irony is that the bipartisan outrage at the Smith decision led to the Religious Freedom Restoration Act, legislation that, in my view, simply did what it purported to do, restore the previous understanding of the force of the Free Exercise clause. That act is now anathema to progressives, who line up quite closely, today, with Scalia.
I do think Scalia one of the most interesting of justices in my lifetime. I held Smith against him personally, though, because my only reported federal appellate case affirmed a religious right to the use of peyote, an opinion blown right out of the water by Smith.
I've always pretty much agreed with his originalist jurisprudence, but I think he was often guilty (as many judges are) of deserting his professed principles when he didn't like where they were leading him.
Although there has been some interesting work in originalism lately--Jack Balkin in particular has done some--I think Scalia's and Bork's approaches were a bit crude, and too easily manipulated for desired outcomes. I'm more of a textualist myself, but I liked Douglas's Free Exercise approach--make sure all interests were weighed, and allow for accommodating where the statutory purpose could still be served. Imperfect, I admit, but better than absolutism on either side.
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