Monday, June 27, 2005

Justice Scalia Puts His Cards on the Table


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.


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.


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.

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.

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.

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?

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.

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
interlocutor questions your
propriety rather than addressing
the substance of your attack.

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.

Enjoyed the string of commentaries.

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