Balkinization  

Monday, June 27, 2005

Justice Scalia Puts His Cards on the Table

JB

In his dissent in McCreary County v. ACLU, Justice Scalia forthrightly explains that the Establishment Clause is not about preserving neutrality between religion and non-religion. It is not even about neutrality among religions. Rather, it requires neutrality among monotheistic religions that believe in a personal God who cares about and who intervenes in the affairs of humankind, and in particular, among Christianity (and its various sects), Judaism, and Islam. From the United States as a Christian Nation, we have traveled to our "Judeo-Christian heritage," and now, apparently, to the "Judeo-Christian-Islamic" tradition. There is no such tradition, of course, as various members of all of these religions (and the various sects of these religions) have fought with and persecuted each other for many years. And one effect of Justice Scalia's theory is that he is willing to enshrine a notion of first class and second class citizens based on religion-- first class citizens can have government acknowledge their religion in public pronouncements and displays, while second class citizens cannot. Well, who said that the Constitution prohibited different classes of citizens, anyway? The Fourteenth Amendment? Who cares about your stinking Fourteenth Amendment!

Even so, it is refreshing to have Justice Scalia put his cards on the table:

[T]oday's opinion suggests that the posting of the Ten Commandments violates the principle that the government cannot favor one religion over another. That is indeed a valid principle where public aid or assistance to religion is concerned, [ed.-- Why?] or where the free exercise of religion is at issue, but it necessarily applies in a more limited sense to public acknowledgement of the Creator. If religion in the public square had to be entirely nondenominational, there could be no religion in the public forum at all. One cannot say the word "God," or "the Almighty," one cannot offer public supplication or thanksgiving, without contradicting the beliefs of some people that there are many gods, or that God or the gods pay no attention to human affairs. With respect to public acknowledgment of religious belief, it is entirely clear from our Nation's historical practices that the Establishment Clause permits this disregard of polytheists and believers in unconcerned deities [does he mean, Deists, like many of the Framers?-- ed.] just as it permits the disregard of devout atheists
. . .
[T]here is a distance between the acknowledgment of a single Creator and the establishment of a religion. The former is, as Marsh v. Chambers put it, "a tolerable acknowledgement of beliefs widely held among the people of this country." The three most popular religions in the United States, Christianity, Judaism and Islam-- which combined account for 97.7% of all believers [do all of the 97.7% believe in a personal God who intervenes in the affairs of mankind?-- ed.]-- are monotheistic. All of them, moreover (Islam included), believe that the Ten Commandments were given by God to Moses, and are divine prescriptions for a virtuous life [Again, do all of the 97.7% actually believe that the Ten Commandments are the actual word of God actually given to Moses on Mount Sinai? What happened to liberal Protestantism and Reform Judaism?-- ed.] Publicly honoring the Ten Commandments is thus indistinguishable, insofar as discriminating against other religions is concerned, from publicly honoring God. [Except, of course, if you are a Christian, Jew or Muslim who doesn't believe in the Bible literally and who may actually be opposed to sects with such views, in which case the government is taking sides in a theological dispute within the various monotheistic religions-- ed.] Both practices are recognized across such a broad and diverse range of the population-- from Christians to Muslims-- that they cannot reasonably be understood as a government endorsement of a religious viewpoint [unless, of course you look at the actual views and theological disputes among Christians, Jews, and Muslims, which Scalia doesn't bother to do-- ed.]

And there you have it. If you aren't a monotheist who believes in a personal God, the government may disregard you. You don't count. We won't persecute you, of course, that would violate the Free Exercise of Religion. But we can disregard you. You are insignificant. You are not us, or perhaps more correctly, we count you as part of us when government acknowledges God, and disregard your protestations to the contrary that you have been left out.
I must respond to JUSTICE STEVENS' assertion that I would "marginaliz[e]" the belief systems of more than 7 million Americans" who adhere to religions that are not monotheistic. Surely that is a gross exaggeration. The beliefs of those citizens are entirely protected by the Free Exercise Clause, and by those aspects of the Establishment Clause that do not relate to government acknowledgment of the Creator.

An interesting distinction . Why can't government support flow only to monotheistic religions? Because that would discriminate among religions, or between religion and non religion? Why then can government engage in such discrimination in its public symbolism? Is it because money is more important than symbols, or because symbols are more important than money? Scalia continues:
Invocation of God despite their beliefs [i.e., the beliefs of whose who believe in many gods, no gods, or who do not believe in a personal god] is permitted not because nonmonotheistic religions cease to be religions recognized by the religion clauses of the First Amendment, but because governmental invocation of God is not an establishment. JUSTICE STEVENS fails to recognize that in the context of public acknowledgements of God there are legitimate competing interests: On the one hand, the interest of that minority in not feeling "excluded,"; but on the other, the interest of the overwhelming majority of religious believers in being able to give God thanks and supplication as a people, and with respect to our national endeavors. Our national tradition has resolved that conflict in favor of the majority

Now, at this point, you may be wondering, why did Jews and Muslims get thrown in the mix of first class religious citizens? After all, if you exclude them you still have about 91% of the population. So why couldn't the government offer prayers to Jesus Christ, our Lord and Savior? Why couldn't we say that "Invocation of [a Christian] God despite the[] beliefs [of non-Christians] is permitted not because [non-Christian] religions cease to be religions recognized by the religion clauses of the First Amendment, but because governmental invocation of [Christ] is not an establishment." Justice Scalia replies that George Washington himself famously promised the Hebrew Congregation of Newport, Rhode Island "All possess alike liberty of conscience and the immunities of citizenship. It is now no more that toleration is spoken of, as if it was by the indulgence of one class of people, that another enjoyed the exercise of their inherent natural rights." But this is a promise of unhindered free exercise of religion, not a promise about state sponsored displays of religion. That is the very distinction that Scalia himself made in the passage quoted above: "The beliefs of those citizens are entirely protected by the Free Exercise Clause, and by those aspects of the Establishment Clause that do not relate to government acknowledgment of the Creator."

Justice Scalia might respond that tradition going back to the very founding of our country secures the inclusion of Jews and Muslims, but not other religious minorities and not agnostics and atheists. If this is indeed his argument, I must beg to differ. The widespread notion of a "Judeo-Christian" heritage is very recent, a product of the twentieth century-- the idea of a Christian nation was far more common in the 19th century. And even if we take Washington's letter as proof about the inclusion of the Jews in the meaning of the Establishment Clause, there is no long history or tradition of inclusion of Muslims, among other reasons, because there were very few Muslims in the country until after the reform of the immigration laws in 1965. The idea of a Judeo-Islamo-Christian" tradition is just made up in light of 9/11, the increasing number of immigrants from Muslim countries, and our foreign policy imperative to establish that we are not at war with Muslims, just with terrorists. Justice Scalia's tradition of establishment of monotheism is, like so many other traditions, an invented tradition which he has made up to produce an outcome that he politically prefers.

Once again, I must insist, as I have before in other posts, that although Justice Scalia repeatedly claims that his theory of adherence to text, original understanding and tradition is superior because it constrains judges from imposing their personal views into the Constitution, it does nothing of the sort. This case is a perfect example. Justice Scalia has particular views about religion and about what sorts of government invocations of religion should or should not be regarded as offensive or as marginalizing people with different religious beliefs than his own. These political beliefs produce the outcome he takes in this case.

I sympathize with religious people who do not want the government to treat them as second class citizens. But surely the solution is not to make the sort of distinction between religions that Justice Scalia advocates in this opinion.


Comments:

Prof. Balkin:

I've seen this question posed before with regard to Justice Thomas and his non-incorporation views; it think it also makes some sense with regard to Justice Scalia's views. Do you think either of them would write differently if they knew they were the 5th vote? It's one thing to talk about non-incorporation or about state endorsement of monotheism when one knows that one's writings make little practical difference. Would they write differently if they knew it mattered? Given what are certain to be significant changes in the Court over the next year or two, this is a question with very real implications, and I'm curious to know what you think.
 

I personally found Justice Scalia's dissent to be a waste of space. He argues for pages and pages that it is indeed acceptable to discriminate against those that aren't part of the "big three religions", then ends by saying that this case doesn't involve said discrimination.

What a waste, his argument that discriminating is okay has nothing to do with his opinion, and his opinion therefore has nothing to back it up. (ie. Why isn't it discrimination?)

I wrote a post similar to yours here.
 

Scalia can't be criticized for rejecting neutrality between religion and non-religion, because neutrality is simply impossible. As Stanley Fish said in The Trouble with Principle, "every position borrows its intelligibility from that from which it would be distinct." The Courts must either take a side (and flatly prohibit one or more voices from entering the public square, as they did today) or else they must permit all voices to be heard, accepting as a necessary consequence that the voice of the majority will inevitably be easily discerned through the background cacophony of pluralism. Or so I argued here.
 

Justice Scalia might respond that tradition going back to the very founding of our country secures the inclusion of Jews and Muslims, but not other religious minorities and not agnostics and atheists.

If he did, he'd be ignoring the Founding Deists (Jefferson and Franklin, probably Washington, Adams and others), whose beliefs would almost certainly be labeled atheistic by most 21c American Christians.
 

Scalia is full of it. Thomas is on stronger ground.

The notion of equal protection demands must that atheists, polytheists, those who believe in a distant God, etc. be included.

And Jefferson and Madison are on record specifically stating this to be proper in religious matters.

I think Thomas, who is more consistent than Scalia, draws the line at coercion (that is, if the EC is to be incorporated at all, which I think it should be).

In other words, if a govt. wants to erect a billboard stating "there is no God" or "under 20 Gods," or even "the Catholic Church is the Whore of Babylon," as long as it's just a billboard, it should be permitted as a non-coercive Establishment.

At least, if Thomas were to be consistent, he would have to hold this way.

That's far more defensible than stating that government ought to privilege certain monotheistic religions v. others.
 

Prof.

You are absolutely right about the historical nonsense of a "Judeo-Christian-Islamic" culture.

Back during the time of the Founding there were roughly two schools of thought regarding how to understand religious rights (actually it's more nuanced than this -- more variation, but permit me to simplify).

One school that wanted to give rights only to the different "Protestant" sects of Christianity (not to Jews or Catholics or Muslims).

And the other that would apply rights universally, not only to Jews, Catholics, and Muslims, but to Hindoos, Pagans, and Infidels of every denomination. In other words, Jews and Catholics tended to take their rights with the heretics, atheists, and polytheists.
 

And I believe he's referring exclusively to the Abrahamic traditions. Other monotheisms do not merit protection under Scalia's regime.
 

Coming out of a tradition that has until rather recently been excluded from both the "christian nation" and the monotheistic club (despite our protestations), I find Scalia's historically revisionist argument deeply disturbing. Even within Christian denominations, doctrinal differences are still seething under the current (strange) political comity. Thanks for this post, Prof. Balkin.
 

Our first four Presidents, Washington, Adams, Jefferson and Madison, may or may not have been Deists, but each of them delivered an inaugrual address that invoked the favor of a personal God who is concerned about the welfare of humankind in general and the United States in particular. You can, as they say, look it up. What in heavans name were these Framers thinking?
 

Hey, there, Prof. Hi also to all our commenters, pro and also anti.

I'm working on an exceedingly long post on Scalia over my blawg, but you've just saved me a lot of time; I don't have to include my "Scalia and religion" bit, I can just point to this.

To conservlaw: What were the Framers thinking? I can't imagine. Was our Third President a Framer? Not if you mean "Framer of the Constitution" - as I recall, he was in France at the time, and actively sneered at the Bill of Rights.

If you are making an argument that assumes that "The Framers" (or ratifiers, or Founding Fathers, or the 14th-amendment-adopters, or The Massed Understanding of The Public, or anything else at all) was unified, or coherent, or even _existed_, I'd like proof.

Otherwise, i will be somewhere between cynic, pragmatist, and legal realist, and answer thus: It doesn't matter what the Framers were thinking when speaking publicly. It matters what they wrote. They wrote "no establishment," not meaning, as Scalia would have it, that the various establishments should be unregulated, but that there _should not be any establishments_. It's the plain language, minus one confusing (to us ignorant moderns) piece of now extraneous language. No law establishing a religion. It's in the text. As you said, don't trust me, look it up for yourself.
 

Although I'll agree with certain commenters that Thomas is on stronger grounds, I think Balkin's wish to find division and atomization within the monotheist tradition - and therefore grounds to dismiss Scalia - to be historically untenable.

NOT only has, for intance, Michael Novik extensively documented the framer's insistence that "God" (or "Yaweh") - not Jesus - as the source of natural law, the consolidation of the agricultural revolution under the rule of law through ethical monotheism if beyond historical dispute. This leads to property rights and the modern division of labor familiar to us today.

Optimism about societies order and the rule of law was not associated with ancient polytheism of Sumeria and Egypt. Quite the contrary. Yet American law and society has come to embody such a distinct tradition through English common law and representative government. To dismiss this fact and deny its symbolic importance goes beyond being uncharitable into the wreckless and hysterical.

Am I - a life long atheist (once a student of Antony Flew and founder of a student freethought group at my university) maed a "second class citizen" under Scalia's dispensation? Hardly.

The silly neglect of the fact that science and atheism itself were the result of Christian intellectual ambition ought to generate respect of our opponents - not blind rejection.

But in these Bush and Dean-Durbin bashing days, who repects the loyalty of the opposition?
 

Although I'll agree with certain commenters that Thomas is on stronger grounds, I think Balkin's wish to find division and atomization within the monotheist tradition - and therefore grounds to dismiss Scalia - to be historically untenable.

NOT only has, for intance, Michael Novik extensively documented the framer's insistence that "God" (or "Yaweh") - not Jesus - as the source of natural law, the consolidation of the agricultural revolution under the rule of law through ethical monotheism if beyond historical dispute. This leads to property rights and the modern division of labor familiar to us today.

Optimism about societies order and the rule of law was not associated with ancient polytheism of Sumeria and Egypt. Quite the contrary. Yet American law and society has come to embody such a distinct tradition through English common law and representative government. To dismiss this fact and deny its symbolic importance goes beyond being uncharitable into the wreckless and hysterical.

Am I - a life long atheist (once a student of Antony Flew and founder of a student freethought group at my university) maed a "second class citizen" under Scalia's dispensation? Hardly.

The silly neglect of the fact that science and atheism itself were the result of Christian intellectual ambition ought to generate respect of our opponents - not blind rejection.

But in these Bush and Dean-Durbin bashing days, who repects the loyalty of the opposition?
 

Although I'll agree with certain commenters that Thomas is on stronger grounds, I think Balkin's wish to find division and atomization within the monotheist tradition - and therefore grounds to dismiss Scalia - to be historically untenable.

NOT only has, for intance, Michael Novik extensively documented the framer's insistence that "God" (or Yaweh) - not Jesus - is the source of natural law, the consolidation of the agricultural revolution under the rule of law through ethical monotheism is beyond historical dispute. This leads to property rights and the modern division of labor familiar to us today.

Optimism about progress, the social order and the rule of law was not associated with ancient polytheism of Sumeria and Egypt. Quite the contrary. Yet American law and society has come to embody such a distinct tradition through English common law and representative government. To dismiss this fact and deny its symbolic importance goes beyond being uncharitable into the wreckless and hysterical.

Am I - a life long atheist (once a student of Antony Flew and founder of a student freethought group at my university) made a "second class citizen" under Scalia's dispensation? Hardly.

The silly neglect of the fact that science and atheism itself were the result of Christian intellectual ambition ought to generate respect of our opponents - not blind rejection.

But in these Bush and Dean-Durbin bashing days, who repects the loyalty of the opposition?
 

This is classic Justice Scalia. He subtly, and sometimes not subtly, reframes the question to provide an answer he has available. I suppose if this were the Constitutional Convention debating the desirability of the establishment clause or its interplay with the free exercise clause his dissent would have more relevance. But I beleive he went off the subject in this case.
 

To ehnonymoue: Since all that matters to you is the plain text of the establishment clause, please cite for me the "law" that was at issue in McCreary.
 

Prof. Balkin,

You don't attend to the part of Scalia's argument where he responds to JPS's contention that some at the founding wanted Christianity generally given a privileged position, as opposed to "monotheism". In replying to that, Scalia notes that the question was indeed posed a the founding and the position rejected; he cites the official proclamations of the First President as evidence that the framers (a) tolerated official invocation of religion and (b) rejected official invocations of Christianity.

I think that section responds to a great deal of your questioning as to "why lump the monotheistic religions together." Perhaps upon reviewing it you might amend your post so that it will not suggest that Scalia's opinion declines to address the issue, since, in fairness, he does not so decline.
 

Prof. Balkin,

It is also not at all clear how there are "classes" of citizens created by what Scalia is prepared to defend here. What is the harm claimed? Is the harm "establishment"? Which religion is being "established" by posting the 10 commandments?

Your post assumes the rhetorical posture that Scalia has to make some showing that the founders intended to create classes among believers of certain sorts (and non-believers), but that's a straw man. It seems to me that Scalia's recitation of the historical facts of the early official acts of the framers shows that they did not regard the sort of invocation of a deity that is part of the 10 commandments display to be anything like an "establishment" of religion, which they themselves had ruled out.

It would seem the burden is on your side to justify the overheated rhetoric about the harms here, and to connect the actual proscribed actions with "establishment" rather than accusing Justice Scalia of ignoring points he in fact addresses.
 

Overheated rhetoric?
Actual harms?
Jesus Christ on a stick.

Take it from an
actual atheist: state
support of the beliefs
of 98% sure feels like
harm to the 2%.

Were you by chance
a separate-but-equal
proponent in a
former life?
 

Justice Scalia's elevation of "Judaeo-Christian-Islamic monotheism" to the status of a national religion is belied by the 1796 Barbary Treaty. Article 11 reads as follows:

"As the Government of the United States of America is not, in any sense, founded on the Christian religion; as it has in itself no character of enmity against the laws, religion, or tranquillity, of Mussulmen; and, as the said States never entered into any war, or act of hostility against any Mahometan nation, it is declared by the parties, that no pretext arising from religious opinions, shall ever produce an interruption of the harmony existing between the two countries."

Had our government's foundations been conceived as Scalia would now have us believe, the Senate and President would have had an ideal opportunity to make this as plain as day to the Barbary States. They did not. The only religion that might have been worked into our early picture of governance was Christianity.

In speeches Scalia has said that the laws of the land derive their authority from a divine source. That idea is anathema not just to secularists but to religious minorities – such as Jewish people – who know full well that to institutionalize such an idea is to give a particular religion political clout. The fear is not a fear of religion but of one religion masquerading as moral decency. Its inescapable trend is to oppress. Scalia's personal viewpoint is, it appears, another masquerade: that of originalism.

He remarks that "Historical practices … demonstrate that there is a distance between the acknowledgment of a single Creator and the establishment of a religion." The courts of this nation are supposed to adjudicate cases on the facts as they find them, not on how things were two centuries ago.

The courtroom setting of the Ten Commandments is particularly sensitive today. The basis on which Scalia distinguishes Stone (which held the Ten Commandments could not be displayed in school) ignores currents now in the air. The Terri Schiavo affair spawned in attacks on a judiciary declared to be hostile to "people of faith." The attacks included threats on judges and the expulsion of one from his church. The threat is now at its zenith, and it is getting political legs at the behest of the Republican Party, whose candidate for the presidency Scalia was instrumental in installing by judicial fiat and whose future candidates for the office (most notably Bill Frist) have now intensified such attacks.

Likewise, the "Jesus-free" acknowledgments of religion Scalia recites are becoming more and more dated. He omits to mention the inaugural prayer for George W. Bush, which invoked Jesus Christ. It was uttered by a cleric who repeatedly called Islam evil. He leaves out the allusions to Romans and John in Bush's rationale for his "war on terror" alongside many other coded Christian references. He ignores religious abuses at the Air Force Academy by Christian chaplains and recruits working in tandem. And his recitation of Congress' opening prayer is oblivious of the recent incident in which a member of the Republican Congress that overreached in passing the Terri Schiavo charged that those across the aisle are "making war against Christianity."

The "historical gulf" between "acknowledgment" and "establishment" is fast closing. Is there any wisdom in pretending it is as good as it ever was (in our armchair imaginings)? How many of these ominous goings-on does a court have to see before it can take judicial notice of them, connect the dots, pierce the myth of a religious consensus, and see a dominionist Christian threat to our republic that knos well how to hide behind a claim of being "in the mainstream" when convenient? Surely, once it emerges from behind that cloak it will be too late for the courts to do anything about it.

Despite his protests, Scalia's is a "living constitution," but it seems that the constitutional order he favors is one that itself poses a grave danger to our liberty of conscience and to our wider political freedom.
 

wcw--which government-supported crucifix was it that (a) offended you or (b) would fall under what Justice Scalia thinks permissible under the the 1st Amendment as he understands it? You write as an "actual atheist" offended by Jesus "on a stick" so I presume that's an actual experience of government sponsored Christianity to which you refer. I would be offended to learn that the episode adduced in part to accuse me of being a segregationist was not in fact true. But I do have my doubts.

As to the quotation from the Barbary Treaty, I take it that that coheres rather nicely with Scalia's point that the largely Christian framers did not take themselves to have put forward a sectarian vision of government (Christian or otherwise) even though they did, and frequently, tolerate official religious expression.
 

Gees. you guys are too smart for me. good writers too. Just seems like the government is not allowed establish one religion over another, which I think the ruling upheld. Scalia is only one vote out of nine. If he becomes CJ, he still gets one vote. His wieghting on popular religions over less popular is clearly wrong because he fails to define what a religion is. Is Atheism a religion. No. If it was, then atheists would have the right to post their Commandments in the town square to.
 

What I've never understood is why it's supposed to be so harmful for, say, an atheist to live in a community that officially acknowledges God.

The standard answer is that such official endorsements of religion exclude nonbelievers from the community. Well, sure. But so do lots of other things. The U.S. government has taken an official position that the war in Iraq was a good idea. I disagree. Thus I am, in a sense, excluded from the community.

To take an even more similar example: the government is obviously allowed to take the position that free-market democracy is good and Communism is pernicious. Let's say I'm a Communist. Aren't I likely to feel just as excluded as an atheist in a nominally Christian community?

Now, sure, I understand that religion is a special case because there's, you know, a special amendment about it and all. But the issue is what that clause should mean; and I don't see why arguments based on "divisiveness" and "exclusion" hold much water when the clause applies only to one small part (i.e., religion) of the many things that can divide and exclude people.
 

Jack, I think you are over-analyzing Scalia. He would have written the same thing on 9/10/01. The case involved the 10 Commandments, so he added up the number of people who self-ascribe to religions of the Book. If the case involved a creche, he would do the math for that and still uphold the display.

The fact is, since the start of the republic, the government has been drawing inconsistent lines when it comes to invoking the more or less deeply held beliefs of more or less of its inhabitants. Scalia is trying to speak for those who don't see a big deal in a government that reflects their views for symbolic purposes. To me the problem with Scalia's position is in assuming that there is no harm in putting up the 10 Commandments in a courthouse before they have been duly enacted by a legislature and made law of the jursidiction.
 

Aside from the obvious, what bothers me is Scalia's misleading use of statistics in his justification for this discrimination. He uses the statistic of the Judeo-Islamo-Christian Triangle comprising 97.7 % of all believers. If you don't read that closely, it may look like he's only dismissing 2% of the population, which may or may not make a difference to most people. What matters here is not just ALL BELIEVERS! According to the Statistical Abstract of the United States, in 2001, those not members of the Triangle made up 21.4% OF THE ADULT POPULATION! That's 44 million people left out in the cold by Scalia's interesting interpretation of religions that count. Pretty significant, I think, regardless of your persuasion.

Some people have questioned the harm or offense in the display of these monuments and documents in the public square for those that do not believe. My response is that it is not about being offended by the display of the dominant religion's trappings in public buildings, some are quite beautiful and thought provoking. The issue is fairness, and the general ability to empathize with those different from those in power and in the majority. For example, what if tomorrow, half the population converted to Hinduism and suddenly all the Triangle monuments were gone and replaced with Ganesha, Vishnu, and Shiva by those in power? I think the remaining Triangles wouldn't be too happy, and would feel it an establishment of religion. It's a bit audacious to believe that one group of people will be the majority forever. Let us not forget that not too long ago, the vast majority of people in the United States believed that black people were property, and that women shouldn't be able to vote. After all, that's how it was historically, and the majority of those that counted (white men) could legally disregard those that didn't.

The one thing we all have in common as citizens is that all government buildings belong to all of us as Americans. Those areas should be neutral ground for all citizens regardless of how "legitimate" their faith is in the eyes of Scalia and his disciples.
 

In a pluralist society, the government should represent and protect the rights of every individual in that society. Religion is an individual belief and rarely do two people share the same viewpoints on all tenets of a single sect. Scalia exhibits preference for a single religious lineage originating from the middle east and marginalizes every other belief system practiced in this country. This is hardly the hallmark of a equal democracy. If a government entity chooses to display historical examples of the rule of law, it should display examples of all historical rules of law rather than exhibit preference for a single theological lineage.
 

Pace the patron saint of
politicians, a proponent
of separate-but-equal need
not be a segregationist.
Enablers of that stripe
often exhibit the conceit
that they are reasonable.
Telling indeed when such a
more-reasonable-than-thou
interlocutor questions your
propriety rather than addressing
the substance of your attack.
 

The question of harm is not just a general question. The question before the court is not "how should the government behave here" but "what does the Constitution REQUIRE here". Justice Scalia's arguments are about how best to understand the terms of the First Amendment. If we do not presume that the Constitution is perfect, then we should not be surprised from time to time to find that the right Constitutional answer is not an answer we like.

If, on the other hand, we interpret the Constitution such that it conveniently alights always and only upon just our own view of the best society, we ought to wonder whether our methodology is one of interpretation or invention.

wcw--I have not claimed to be any more reasonable than anyone here. I think that raising separate but equal after Brown is indeed tantamount to calling someone a segregationist, and I see nothing in what I've written to suggest that I believe Brown was wrongly decided. Futhermore, I take it by your omission that you never actually have encountered (a) a government-sponsored crucifix (to employ the technical term), much less (b) a government-sponsored crucifix that would somehow pass muster under Scalia's understanding of the establishment clause, which was the substance of my earlier query to you, as opposed to the way "questioned your propriety" by noting your suggestion that I might be a fan of Plessy...
 

Sigh. One, anyone tendentious
enough to prepend the honorific
'Justice' to every reference to
the partisan schmuck at
issue can fairly be described
as more-reasonable-than-thou.
Two, while my original
comment was a mere offensive
tweak, I can't help but notice
that in both your so-reasonable
replies, you have yet either
to confirm or deny your
status as a separate-but-equal
proponent. Three, as anyone
not seeking to make a point
knows, the expression "Jesus
Christ on a stick" is an
exclamation. Google it.
Four, and for the record,
I have encountered numerous
government-sponsored crucifixes.
Any guesses where?
Five, I am quite confident
that in any hypothetical
crucifix case before his
court that Little Nino would
find a way both to make any
putative state-sponsored display
of that symbol constitutional and
to snow useful idiots like
you into giving his really quite
rabid religious partisanship
more-reasonable-than-thou cover.
Congratulations, Saint More!
Augustine would be proud of you.
 

"What I've never understood is why it's supposed to be so harmful for, say, an atheist to live in a community that officially acknowledges God."

Some atheists, fortunately a minority, unfortunately the ones who get all the press, are so wacked out in their opposition to religion that the least exposure to religion causes them psychic pain.

The appropriate response is to provide them with psychiatric treatment, not purging society of all signs that most people are, (Unfortunately) religious.
 

"What I've never understood is why it's supposed to be so harmful for, say, an atheist to live in a community that officially acknowledges God."
...
Some atheists, fortunately a minority, unfortunately the ones who get all the press, are so wacked out in their opposition to religion that the least exposure to religion causes them psychic pain.


Atheists are not opposed to religion. Atheists simply do not believe in religion. There is a difference.

It is only one small step from marginalizing atheists and polytheists to criminalizing them. It is not a question of atheists or other religious people being "excluded from society", it is a question of the systematic disenfranchisement of anyone who is not a middle-aged, white, male evangelist Protestant that the current administration would be all too happy to ram down our throats-- apparently with Scalia's blessing.

As for whether a crucifix or the Ten Commandments harm anyone... well, let's put it this way: an endorsement of one religion by my county courthouse does make it a little less likely that people of other religions will get fair, blind justice. Which is the ideal we strive for in America, isn't it?
 

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