Justice Sandra Day O’Connor and her legacy

Sandra Day O’Connor, the first woman to serve on the Supreme Court of the United States, died on Dec. 1 at the age of 93. She was President Ronald Reagan’s first appointment to the Supreme Court.

Justice O’Connor authored 645 opinions during her twenty-four years of service on the Supreme Court including her concurrences and dissents. Her record places her more as a centrist and was not as ideologically consistent as her fellow Reagan-appointee and conservative favorite, Antonin Scalia.

At times she was a clear disappointment to the political forces that elected President Reagan. Along with her fellow Reagan appointee, Anthony Kennedy, she propped up and retooled Roe v. Wade in her landmark decision of Planned Parenthood v. Casey in 1992. This 5-4 decision extended the reign of Roe for an additional thirty years until it was reversed in 2022 in the decision-of-the-century case of Dobbs v. Jackson Women’s Health.

However, in two landmark cases that have deeply impacted the conservative movement, O’Connor was on the right side of the issue while Justice Scalia was, in my humble opinion, on the wrong side.

In 1990, Justice Scalia authored a very controversial majority opinion in Employment Division v. Smith—a case concerning two Native American drug counselors who were fired for taking the hallucinogenic drug peyote as a part of a religious ritual.

The counselors argued that they should be allowed to collect state unemployment compensation because their firing violated their right to the free exercise of religion. Few constitutional experts expected them to win. But, almost no one expected the trajectory contained in the Scalia majority opinion.

No party had briefed or argued the position adopted by the five justices in the majority. Scalia wrote that religious freedom claims can never override legal standards imposed by neutral laws of general applicability. In this case, the drug laws of Oregon were not aimed at religious use of drugs. Rather, the legal standards applied equally to all drug usage regardless of motivation.

While this approach has a surface appeal when one thinks about drug laws, Scalia’s rule has many other far less desirable applications. For example, laws that prohibit discrimination on the basis of sexual orientation or gender identity are always written as neutral and general laws. Consequently, the ability of a Christian college to mount a free exercise defense to a suit brought by a rejected LGBTQ applicant was essentially scuttled by Scalia’s opinion in Smith.

His decision was so controversial that a coalition of religious leaders from every imaginable faith group (which I helped lead) convinced Congress in 1994 to enact the Religious Freedom Restoration Act (RFRA) by a unanimous vote in the House and a 97 to 3 vote in the Senate. RFRA was a legislative remedy that effectively reversed Smith, at least when it came to cases against the federal government. Hobby Lobby’s famous Supreme Court victory over Obamacare’s abortion coverage mandate was based on RFRA and not on the Free Exercise Clause.

Justice O’Connor, however, concurred in Smith but did not accept Scalia’s logic. She wrote the opinion that almost every constitutional scholar was expecting from the majority. She followed the longstanding constitutional standards for cases under the Free Exercise Clause that require the government to survive “strict judicial scrutiny” before a claim of religious freedom can be denied. In this case, she reasoned that Oregon’s application of its drug laws to those employed as drug counselors passed this test since the interest was incredibly compelling and the laws were as narrow as possible. In other words, she retained the traditional test that brought our nation almost all of its landmark victories for the free exercise of religion. She agreed with Scalia on the facts but differed strongly on the applicable constitutional principles.

Ten years later, in 2000, we saw the same split in the last major parental rights case decided by the Supreme Court.

Justice O’Connor wrote the plurality decision for herself and three other justices. She held that parental rights were violated by a Washington State law that allowed any person to petition for visitation rights if he or she could claim that it would be “in the best interests of the child” to allow the visitation. O’Connor wrote that parental rights demanded more deference than found in the Washington law.

Scalia, on the other hand, dissented. He contended that since parental rights are not found in the text of the Constitution, they deserve no constitutional protection whatsoever.

Justice Sandra Day O’Connor is not my all-time favorite member of the Supreme Court. But I regularly defend her honor despite her deviations because she stood fast for the importance of the free exercise of religion and the protection of parental rights as a fundamental constitutional liberty. Those two principles have effectively defined my life’s work, and for that, I honor her.