1990 Scalia Letter Defends Smith Ruling That Neutral Laws Apply Despite Religious Practice

An unsealed letter written by Justice Antonin Scalia on May 25, 1990, defends his majority opinion in Employment Division v. Smith, according to washingtontimes.com. The signed document on official Supreme Court chambers stationery was found in Scalia’s papers at Harvard Law School.

The letter was sent to Judge Thomas J. Aquilino of the Court of International Trade weeks after the decision. Scalia wrote that the court had never held an individual’s religious beliefs excuse compliance with a valid law.

Employment Division v. Smith concerned two drug counselors denied unemployment benefits after being fired for ingesting peyote during an American Indian religious practice. Scalia’s opinion held that neutral laws of general applicability do not violate the First Amendment even when they incidentally burden religious practice.

The ruling drew sharp criticism from religious-liberty advocates and conservatives who had supported Scalia’s nomination. In the letter Scalia told Aquilino to inform students there is a difference between demolishing a building and clearing up rubble that someone might trip on.

James Rosen, chief Washington correspondent at Newsmax, discovered the letter while researching the third volume of his Scalia biography.

Rosen’s earlier volumes cover Scalia’s life through 2001. Scalia died in 2016 during a hunting trip to Texas. In a 2015 interview with Rosen, a former Harvard Law classmate said Scalia stated he was “really reconsidering” the Smith decision.