During oral arguments in Holt v. Hobbs, in a question to the Deputy SG about how RLUIPA works, Justice Scalia mentioned this important fact–he would not have enacted RLUIPA.
JUSTICE SCALIA: Well, wait a minute. So vote more money. All you have to do is raise taxes. We’re talking here about a compelling State interest. Bear in mind I would not have enacted this statute, but there it is. It says there has to be a compelling State interest. And you’re you’re asking, well, let’s balance things; let’s be reasonable. Compelling State interest is not a reasonableness test at all.
Is that not significant? He wouldn’t have voted for RLUIPA. Recall that he did write Smith. If so, would he also not have voted for RFRA, as applied to the federal government (put aside the federalism problems)? That makes his opinion in Hobby Lobby so much more significant.
H/T Jacob Berlove