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.