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Justice Scalia's big mistake

If I told you that U.S. Supreme Court Justice Antonin Scalia, in 1990, was responsible for watering down religious liberty protections under the U.S. Constitution’s 1st Amendment, and that then-Rep. Chuck Schumer and President Bill Clinton were responsible for later instituting a law that fortified religious liberty — undoing Justice Scalia’s folly — you might think I was reciting some lost manuscript of Rod Serling’s “The Twilight Zone.”

In today’s political terms, we don’t often think about political liberals advancing the cause of religious liberty while political conservatives do the opposite, but such was the case some 30 years ago.

Nebraska now has the opportunity to follow in the footsteps of Schumer, an overwhelming bipartisan U.S. House and Senate, and Clinton, by strengthening the religious liberty protections afforded in Nebraska by passing LB277, the First Freedom Act, which was introduced by Senator Tom Brewer of Gordon and recently prioritized by Senator Brian Hardin of Gering.

But let’s briefly return to the history to better understand LB277.

In 1990, Justice Scalia authored Employment Division, Department of Human Resources of Oregon v. Smith. In that case, Scalia crafted a new rule for evaluating legal claims brought under the Free Exercise Clause of the 1st Amendment. Scalia’s rule states that there generally cannot be a 1st Amendment religious liberty violation if the law being challenged is one of “general and neutral applicability.”

Imagine, for a second, how this rule plays out. The state has a law forbidding all sale and use of alcohol. The Catholic Church alleges this violates its 1st Amendment free exercise of religion because it prohibits its access to wine used in the Holy Mass. Scalia reviews the law, determines that the law is both general and neutrally applicable — it doesn’t have exceptions and it wasn’t meant to target religious adherents. Under this analysis, the Catholic Church would lose under a claim that its 1st Amendment religious liberty was violated. A bit absurd of an outcome, if you ask me, and not what the Founders’ envisioned when they crafted the 1st Amendment.

Scalia’s “general and neutrally applicable” test displaced what was the “compelling interest test.” Under the compelling interest test, three issues must be analyzed. First, does the individual have a religious liberty interest that is being substantially burdened by the government?
If yes, then onto the next question: Does the government have a compelling (or very strong) interest for interfering with the alleged religious liberty violation? If the answer is no, the religious liberty adherent wins and the government loses.

If the answer is yes, then one last issue is analyzed: Did the government use the “least restrictive means” in advancing its compelling interest to avoid unnecessarily violating religious liberty interests? If the answer if yes, the government wins; if no, the religious liberty adherent wins.

While seemingly complicated, the compelling interest test better protects religious liberty by requiring the government to meet a higher standard whenever someone claims a religious liberty violation.

After Scalia authored the “general and neutral applicability” standard, Congress swiftly responded by passing the federal Religious Freedom Restoration Act. This Act reinstated the compelling interest test for any religious liberty claims brought against the federal government.

Unfortunately, Congress was unable to apply this robust religious liberty protection to state level claims of religious liberty discrimination. But many states followed Congress’ lead and passed their own state Religious Freedom Restoration Act.

However, Nebraska did not. But with this legislative session, that could change.

Sen. Tom Brewer introduced LB277, the First Freedom Act. The bill would implement the stronger “compelling interest test” and force state and local governments to have a really good reason for violating religious liberty in Nebraska, something they are not forced to demonstrate under the Smith test established by Justice Scalia.

The legislation was advanced from the Government, Military, and Veterans’ Affairs Committee on a 5-3 vote. Voting in favor of the bill were Senators Ray Aguilar (Grand Island), Tom Brewer, Steve Halloran (Hastings), John Lowe (Kearney), and Rita Sanders (Bellevue). Voting against the bill were Senators Danielle Conrad (Lincoln), Megan Hunt (Omaha), and Jane Raybould (Lincoln).

The bill was immediately prioritized by Senator Brian Hardin, a former pastor. Typically, when a bill is advanced from committee and prioritized, it is guaranteed to be debated by the whole legislature and have the opportunity to be advanced into law.

To pass legislation like the First Freedom Act, we need your voice and influence. You can easily advocate on bills like LB277 by joining our Catholic Advocacy Network of Nebraska at While you’re on our website, don’t forget to register for Catholics at the Capitol! God bless your efforts—and pray for ours!

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