Published April 24, 2023
INTRODUCTION: A “PRACTICAL ORIGINALIST” ON THE RELIGION CLAUSES
Justice Alito’s work on religion law is a hallmark of his jurisprudence. He has shaped this field more than any other sitting Justice, and perhaps even more than any other member of the Court in its history. On many issues—religious neutrality and religious exemptions, church autonomy, the Establishment Clause, and more—he has authored pioneering opinions that have refined existing doctrines. He has elaborated precedents to meet new challenges and then, when they have proven unworkable, replenished the caselaw by drawing on deeper sources—forgotten precedents, historical practice, and the text. In this way, Alito’s religion opinions highlight his distinctive approach as a doctrinalist and practical originalist, combining discipline with vision.
His contributions began, remarkably, with his time as a circuit judge. When the Supreme Court in Employment Division v. Smith1 declared that under the Free Exercise Clause, a law would trigger strict scrutiny—and potentially an exemption—only if the law failed to be neutral and generally applicable, the meaning of “neutrality” was far from clear. The most important answer came from then-Judge Alito, who defined and applied the concept in ways that would guide the Supreme Court’s own cases for decades—including in its free exercise review of COVID-19 regulations some 30 years later…
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Gabrielle M. Girgis, Ph.D., is a Postdoctoral Fellow at the Ethics and Public Policy Center.